Louisville Law Examiner 5.6, April 14, 1980

Louisville Law Examiner
Serving The University of Louisville School of Law Community
Volume 5, Number 6 Louisville, Kentucky, April 14, 1980
Law School Fields Two Teams
In National Competition
by Pat Chism
After defeating an Ohio State Law
School team by a large margin, a team
from the University of Louisville School of
Law in the Sixth Circuit Moot Court Competition
fell before the eventual winner,
Capital University of Columbus. The competition
was held at the University of
Akron on March 7. Stephanie Miller and
Matt Livingood comprised the Louisville
team, which was accompanied by faculty­advisor
James J. Ragan.
"We beat ourselves in the second
round," said Mr. Livingood. "The others
were less able to think on their feet, but
they had reviewed the case so much that
their responses were automatic. We think
better on our feet. We just came up short
on the questions." Prof. Ragan agreed that the Capital
team was "finely honed. Capital places
a great deal of emphasis on appellate argument.
They had probably argued this par­ticular
problem ten to fifteen times before
they came to the regional." Ms. Miller
said, "It was like being up against a bunch
of robots." But Prof. Ragan felt that they
measured up well against the other teams.
The two teams from Capital finished
first and second in the Circuit competition.
They both go on to participate in a national
competition to be held in San Francisco
during the national ABA convention in
August.
Twenty-one teams competed in Akron,
with most being from Ohio. The team from
Louisville and one from the Chase School
of Law were the only teams representing
the state of Kentucky, said Ms. Miller. The
competition is sponsored by the Law Stu­dent
Division of the ABA.
Each team was assured two rounds.
Finalists were determined by a "power
pairing" approach and, if a team won both
rounds, it automatically advanced. The
vacancies in the field of eight semi-finalists
were filled by the teams with the highest
point differentials. U of L's team defeated
Ohio State by 33 points and lost to Capital
by 10 in a split decision, making their dif­ferential
23 points which was not enough
to advance.
"I do it because I enjoy it," said Mr.
Livingood, in commenting on the competi­tion.
''I think people are selling themselves
short if they don't try out for these types of
things. I know for one thing, it is looked on
favorably on resumes." Mr. Livingood has
become accustomed to appellate competi­tion,
as this is his second year on the Sixth
Circuit competition, and he has also par­ticipated
on the National Moot Court team
from U ofL.
"I got into it mostly because I have a
fear of speaking," said Ms. Miller. "I
knew I would have to get over it. It is better
to do that now than in an actual courtroom
situation."
"What is helpful for people in there for
the first time is to know that everyone else
up there is as scared as you are," she said.
"After it was over I was so hyped-up that I
wanted to get in there and argue it again.
We didn't get much sleep so I guess I was
running on pure adrenalin."
The problem involved nine constitutional
issues and was argued as a case of first
impression in the "court." It dealt with a
private contractor who was building low in­come
condominium units. The city con­demned
the property they were building on
for a sewage plant, motivated, claimed the
builder, by discrimination to prevent the
project. The city counterclaimed saying
they had a right to condemn, and that the
units were to have an illegal racial quota
anyway. A standing issue was also raised.
The teams were given opinions of a dis­trict
court and a court of appeals. They had
to research the issue from there for the
"Supreme Court" argument. "I learned
how to research a case in the nitty-gritty,"
said Ms. Miller.
There were only four people who tried
out for the team this year. Prof. Ragan at­tributed
part of the poor turnout to the
timing of the competition. In the future,
the Moot Court Board plans to promote it
more, he said. Mr. Livingood felt it was a
matter of developing school pride in this
aspect as the Ohio schools have done while
Ms. Miller said that having two teams from
the school would give the school a much
better shot at winning.
Client Counseling Team
by Craig Bell
On March 8, 1980 the School of Law was
also represented by a team composed of
second-year day-division students Ray
Haley and Ernest Caposela in the regionals
of the National Client Counseling competi­tion
held in Lexington, Kentucky. The
event, which is sponsored by the American
Bar Association for the purpose of expos­ing
law students to the problems an at­torney
may face while counseling clients,
attracted about 120 law schools to the com­petition
nationally.
According to Mr. Caposela and Mr.
Haley, they learned of the competition
from Professor Marlin Volz through his
Legal Counseling seminar. Prof. Volz
served as the team's advisor and provided
video tapes of past competitions for the
team to observe so that they would be
familiar with the format of the event and
have some idea of what to expect in the
competition. He also arranged for a
number of attorneys to discuss client
counseling problems with the team over
dinner at Masterson's Restaurant.
Mr. Haley and Mr. Caposela felt that
time limit restrictions were a major reason
that they were eliminated in the first round
of competition by Thomas Cooley Law
School of Detroit, Michigan, which went
on to win the regional competition. The
problem faced by the team involved giving
legal ~dvice to a widow regarding business
partnerships, decedents' estates, and
ethical considerations. One psychologist
and three attorneys served as judges for the
event.
Mr. Haley believes that a great portion
of the competition deals with the need of
an attorney to present a theatrical-like per­formance
to the client and that making the
client feel comfortable while talking to the
attorney is of primary importance.
Both Mr. Caposela and Mr. Haley stated
that the competition was very worthwhile
and expressed a hope that more U of L law
school students would become involved in
the competition next year.
Matt Livingood and Stephanie Miller represented the
School of Law in a Sixth Circuit Moot Court Com­petition
held on March 7.
Ray Haley and Ernest Caposela participated in a Client Counseling com­petition
held on March 8. Prof. Marlin Volz, center, served as the team
advisor.
Circulation 4100
Irving Younger
Prof. Younger
Gives Lectures
On Evidence
On April 10, the Louisville Law Forum
sponsored two lectures by Cornell Law
School Professor Irving Younger. Prof.
Younger is presently the Samuel S. Leibo­witz
Professor of Trial Techniques at
Cornell.
Because of his wide-ranging experience
in courtroom practice. Prof. Younger is a
nationally respected authority on the subject
of evidence. He is chairman of both the
Trial Advocacy Section of the American
Association of Law Schools and the Com­mittee
on Teaching of Trial Advocacy for
the Litigation Section of the American Bar
Association.
In addition to previous faculty positions
at Harvard and Columbia University Law
Schools, Prof. Younger served for several
years as an Assistant U.S. Attorney in New
York and later as a Judge of New York
City's Civil Court. He is a 1958 graduate
of New York University Law School where
he served as editor-in-chief of the law re­view.
During his first lecture at I :00 in the
Allen Courtroom, Prof. Younger delivered
a spirited, step-by-step account of the
famous espionage trial of Alger Hiss. He
discussed each phase of the evidence that
had been presented, pointing out particular
impeachment techniques used against some
of the 112 witnesses who testified, and
ended with an animated summation for the
prosecution.
At 8:00, Prof. Younger addressed a
specific aspect of trial practice evidence, the
examination of expert witnesses. He empha­sized
that the "cross-examination of an ex­pert
should be fun rather than intimidating
... If you don't bloody an expert every
time you have the chance on cross-examina­tion,
shame on you ."
A reception was held in the Cox class­room
after the lecture.
The Law Forum also hosted a dinner for
Prof. Younger before his second lecture.
Among those persons who attended were
Kentucky Supreme Court Justice Marvin
Sternberg, Circuit Court Judge Charles
Liebson, District Court Judge Olga Peers
and Louisville attorneys Larry Franklin and
Gary Weiss.
2 Louisville Law Examiner, April14, 1980
Letter to the Editor
Dear Editor:
The Moot Court Board recently voted to
postpone the voluntary rounds of the
Pirtle-Washer competition until the fall
term. It seems that several members of the
first year class felt that it was unfair to ask
them to compete again this term. A petition
was hastily circulated and presented to the
Board.
I was, and still am, against shifting the
bulk of the competition to the fall term. I
had no vote on the matter since I am no
longer on the Moot Court Board, but for
the record I would like to explain my point
of view.
First of all, there was no master plan to
make it rough for the first year class. That
is pure paranoia. The program was struc­tured
by students, most of whom par­ticipated
in the advanced rounds their first
year here. This is a professional school and
therefore it requires a higher standard of
competence and devotion than under­graduate
school.
Secondly, shifting the bulk of the com­petition
to the fall effectively destroys the
National Moot Court competition for
those who will be second-year students next
year. The sizable number who signed up to
continue in the Pirtle-Washer competition
won't be able to participate in both effec­tively.
The present sign-up list will require
five rounds to pick the finalists. They will
certainly be experienced, but they cannot
compete here and in another city
simultaneously.
I think a legal education should include
more than class attendance. The various
competitions provide an excellent op­portunity
to learn valuable skills. I can't
suggest strongly enough that everyone push
themselves a little to participate in these
competitions. The more competitors the
better the team selected. And the better the
team selected the greater the chances that a
team from this school will place nationally.
That bolsters the reputation of the school
and cannot hurt job prospects down the
line.
Most day students clerk their third year.
They have one foot in the "real world" and
want nothing more than to put the trailing
one in the same place. Employers are not
blind to the fact that doing something out­side
of class requires a little chutzpah. That
is why I feel so strongly about the various
competitions in the second year.
In conclusion, I feel that a number of
events culminated in an unfortunate result.
The National Moot Court will lose the
benefit of a lot of energy. I hope the new
Moot Court Board will find a way to over­come
some of the obstacles that seem to ap­pear
every year. The program has only
been in the hands of students for a short
time. Some progress has been made, but
there is still much more that can be done to
make the progams more enticing and more
competitive. The only limit is the students'
willingness to improve this situation for
themselves and those who will follow.
Frank Burnette
New Officers for 1980-81 Law Examiner
Edlton of the Loulsvllk Lllw Emmlner for 1980-81 are, from left: leff Wade, Brandeis
Brief Editor; Tom Schultz, Managing Editor; Elizabeth Ward, Editor-in-Chief; Frank
Bush, Associate Editor; (standing) Craig Bell, Associate Editor; John Wright, Business
Manager; and Scott Furkin, Photogaphic Editor. Gerald "Bear" Schray, Art Editor, was
sitting under the table.
Louisville Law Examiner
EDITORIAL BOARD
Sam B. Carl, Editor-In-Chief
Greg Yopp, Managing Editor
Elizabeth Ward, Associate Editor
John B. Wright, .Jr., Business Manager
Pat Claillm, Photoarapbic Editor
Scott Farkla, .Photoarapber
·Gerald "Bear" Schray, Artht
STAFF
Jeffrey L. Wade, Brandeis Brief Editor
CraiJ Bell, Articles Editor
Pat Chism, Projects Editor
Andy Altman
FraakBusll
HaiiSaaden
Tom Schulz
· ,JudRr MARLIN M. VOLZ. Advisor Professor A tBt:RT T. QUICK, Consultant
The Louis.-ilte /_aw Examiner is .published eight timt'S durin~t the academk ~·ear in lht>
Interest of tllr University of touisville School of l .aw commonit)·. Unsi~tned editorial opinions
are thflse represenlinR a Rlajority vt~e of the editorial board and do not neressarit~· expt"t>Ss the
views of the School of Law or the Univtrsit~· of Louisvillt>.
Articles are invited from facull)· members. students, and members of the bar "·Ito wish to do
freelance work, but any proposed arlide must be dt>ared in ad\'ant·e with lht> editor as to topk
and length. This is to avoid duplication nf wnrage and insurl' that lht• artidt> "ill nnl be
beyond workable length fctr a newspaper fnrmal .
Address all communications to the Louisville Law Examiner, School of Law, University of
Louisville, Louisville, Kentucky 40208. Phone 502-588..(i398.
11Brandeis Brief'' Series
Emerging Legal Issues
Trial by Television:
Point of No Return?
PART II
By George Gerbner
The Annen berg School of Communications
University of Pennsylvania
INSTITUTIONAL CROSS-PURPOSES
Entertainment is the cultivation of conventional morality. it " entertains" the
basic values and norms of the community and cultivates conformity to those
norms. An imporant part of that is the exploitation of popular prejudices and the
cultivation of public support for the suppression of threats and challenges to
the social order.
From the arenas of the Roman empire to the present, show trials, highly pub­licized
confessions, public tribunals and executions have formed a part of that
process. The most widely frequented shows in London just emerging from the
middle ages were "public executions; and even after these were abolished, atten­dance
at murder trials remained as a more socially restricted but nevertheless
much sought-after entertainment. A visit to a hanging might well, one presumes,
have followed a gentle prodding with a stick of some madman at Bedlam." 10
· The great show trials and public confessions of the twentieth century occurred
under dictatorships and periods of witch hunt in democracies. They were a part of
the ·entertainment mainstream, now joined by much of what we call news, com­pelling
attention, exposing deviation, spreading fear, and cultivating conformity.
The most recent state to use television trials in a systematic way is the new
Islamic government of Iran which broadcast them and aired "full confessions"
nightly on television. 11
Tempering the swift and powerful tides of the cultural mainstream are the pro­tections
provided by those specialized institutions whose integrity is essential
for the survival of self-government, if not of the human spirit. These institutions
adjust the social order to a plurality of interests and hold out the possibtlity of
peaceful reform and renewal under changing conditions. Perhaps the most impor­tant
are the legal protections afforded those accused of deviating from the norms
of conduct, particularly in ways most likely to draw media attention.
The struggle to remove trials from the public arena parallelled the fight against
secret proceedings, the Star Chamber. In fact, the two are sides of the same coin.
Arbitrary power wants no public witness to its private deliberations but needs all
the hoopla it can get to legitimize its actions.
The integrity and independehce of judicial proceedings serve to protect the
accused from both arbitrary power and public prejudice. The purpose of open
trials is to help assure observance of these protections, not to entertain or even
to educate. The legitimacy of a legal system does not derive from immediate pop­ular
approval of court decisions. The vigilance of a free press is needed to prevent
judicial abuse and the erosion of the legal protections of a fair trial, but not to add
the pressure or popular clamor to the proceedings.
Reasons for Canon 35
General entertainment and specific rights have never mixed well. Chief Justice
Warren pointed out in Estes v. Texas that "In the early days of our country's de­velopment,
the entertainment a trial might provide often tended to obfuscate its
proper role." And he continued. citing other accounts:
The people thought holding court one of the greatest performances . . .
the country folk would crowd in for ten miles to hear these 'great lawyers'
plead; and it was a secondary matter with them whether he won or lost his
case, so long as the 'pleading' was loud and long.
In early frontier America, when no motion picture, no televison, and no
radio provided entertainment, trial day in the country was like fair day, and
from near and far young and old converged on the county seat. The criminal
trial was the theater and spectaculum of old rural America ... All too easily,
lawyers and judges became part-time actors at the bar ... 12
When functions of public entertainment and civic responsibility shifted to the
press, new problems emerged. Crime and court reporting were the big guns in the
circulation wars of the 19th century. They were also weapons of the press on the
way to establishing itself as the organ of business community rather than of local
governments and parties on whose patronage it had to depend before. In that
process, the press shook up some bloated and venal local administrations, police,
and court systems. It also laid claim to conduct trials by newspaper for what
James Gordon Bennett of the New York Herald called the "living Jury of the Na­tion,"
ignoring the essential contrast between jury box and arena.
The rise of movies as competing mass entertainment made Hollywood the
"sin capital" lucrative and lrrestible copy. Movie comedian Roscoe "Fatty"
Arbuckle was charged with the rape and murder of a starlet in a hotel room in
1921. The accusation was instantly leaked. The arrest was staged for reporters.
William Randolph Hearst said that the trial sold more newspapers than the sink­ing
of the lusitania. The press coverage firmly established Arbuckle as "villain
incarnate, a gross vulgarian of obscene appetites."13 The resulting public agita­tion
and the threat of legislation forced the movie industry to start its Production
Code. After three trials Arbuckle was found not guilty but was ruined and died
in disgrace a decade later.
The American Bar Association appointed a special committee in 1924 to curb
"unwholesome tendencies" in news reporting. The committee reported in 1927
that "There can be no more opportune time than the present for the press to cease
(continued on page 3)
, I
Louisville Law Examiner, April14, 1980
making vulgar amusement of our law enforcement institutions ... " Instead, how­ever,
crime photographers entered the courtroom, disrupted proceedings and
sneaked pictures of convicted murderers dying in the electric chair.14
The 1935 trial of Bruno Richard Hauptman, accused of kidnapping the twenty­month
old son of Anne and Charles Lindbergh, attracted an army of reporters
and photographers. The American Bar Association called the Hauptman trial
"the most spectacular and depressing example of improper publicity and pro­fessional
misconduct ever presented to the people of the United States in a crim­inal
trial." 15 The ABA passed Canon 35, a ban on cameras and microphones in
the courtroom. But two more landmark cases had to exact their high price in pub­lic
understanding and justice before the lesson sunk in - at least temporarily.
They were the 1954 murder trial and conviction of Dr. Sam Sheppard and the 1965
swindle trial and conviction of Billie Sol Estes - both eventually reversed be-cause
of massive, pervasive and prejudicial publicity. ·
In the latter case, the "circus atmosphere" prevailing at the trial, inevitable
in the days of hot lights, heavy cameras, and massive cables, has received the
lion's share of attention in causing the reversal of the conviction. Actually, how­ever,
other considerations, as valid today as they were then, if not more so, weighed
heavily in the decision of the Court, as a few excerpts from Mr. Justice Clark's
majority opinion will indicate:
We start with the proposition that it is a 'public trial' that the Sixth Amend­ment
guarantees to the 'accused.' ...
It is said, however, that the freedoms granted in the First Amendment ex­tend
the right to the news media to televise from the courtroom, and that
to refuse to honor this privilege is to discriminate between newspapers
and television. This is a misconception of the right of the press . . . The tele­vision
and radio reporter has the same privilege. All are entitled to the same
rights as the general public ... As has been said, the chief function of our
judicial machinery is to ascertain the truth. The use of television, however,
cannot be said to contribute materially to this objective. Rather its use
amounts to the injection of an irrelevant factor into court proceedings ...
. . . From the moment the trial judge announces that a case will be tele­vised
it becomes a cause celebre ... The whole community, including pro­spective
jurors, becomes interested in all the morbid details surrounding it
... And we must remember that realistically it is only the notorious trial
which will be broadcast because of the necessity for paid sponsorship ...
If a community be hostile to an accused, a televised juror, realizing that he
must return to neighbors who saw the trial themselves, may well be led
'not to hold the balance nice, clear, and true between the State and the
accused .. .'~ ..
. . . We know that distractions are not caused solely by the physical
presence of the cameras and its tell-tale red lights. It is the awareness of
the fact of telecasting that is felt ... throughout the trial ...
... The impact upon a witness of the knowledge that he is being viewed
by a vast audience is simply incalculable ...
While some of the dangers mentioned above are present as well in news­paper
coverage ... the circumstances and extraneous influences ... in the
televised trial are far more serious ...
A major aspect of the problem is the additional responsibilities the pres­ence
of television places on the trial judge. His job is to make certain that
the accused receives a fair trial ... Our jduges are high-minded men and
women. But it is difficult to remain oblivious to the pressures that the news
media can bring to bear on them both directly and through the shaping of
public opinion. Moreover, where one judge in a district or even a State per­mits
telecasting, the requirement that the others do the same is almost
mandatory. Especially is this true where the judge is selected at the ballot
box.
Finally we cannot ignore the impact of courtroom television upon the
defendant ... A defendant on trial for a specific crime is entitled to his day
in court, not in a stadium, or city or nationwide arena. The heightened pub­lic
clamor resulting from radio and television coverage will inevitably result
in prejudice. Trial by television is, therefore, foreign to our system ... 16
Recent trends
Foreign or not, its day has come. Memories of trials by newspaper and the fias­cos
of Sheppard, Estes, and lesser cases made most courts hold back, except in
Colorado where the trial of Black Panther LaurenT. Wilson was televised in 1970.
Then the drawing power of the Watergate impeachment hearings and the lure of
sensational trials led to mounting media pressure on the courts. Murder cases
were televised in the states of Washington, Utah, Nevada, and Indiana. In an Ohio
test case, the defendant, charged with the rape and murder of a 9-year-old girl,
was allowed to be hypnotized during the examination, creating high viewer in­terest
in the trial. Hustler magazine owner Larry Flynt was shot during a recess
of his televised trial. Other notorious cases, some violating unenforced laws and
guidelines, added to the pressure. 17
The murder-robbery case of 17-year-old Ronney Zamora, televised during a one­year
"experiment" in the state of Florida, became a national media sensational
because television itself was "on trial" when the novel defense charged it with
inducing insanity through "involuntary subliminal intoxication." The ratings were
reported to have exceeded those of the Johnny Carson Show. When Zamora was
sentenced to life imprisonment, press reports claimed that television was
"acquitted." The defendant, on the other hand, may have been ill served. In an un­successful
attempt to obtain a new trial, distinguished criminal lawyers and a
Dade County Criminal Court Judge testified that Ronney Zamora's defense be­came
secondary to other interests served by the television coverage. 18
The current "experiment" in Iowa courtrooms specifies that a defendant or
witness may seek to have video recording stopped "upon showing that harm would
result." 19 How can a person involved in a trial know, let alone show, such a thing?
Already a Florida District Court of Appeals has overturned a conviction because
the judge allowed the trial to be covered against objection and without "a full
evidentiary hearing on the possible effects of coverage."20 In another Miami case,
the defendant appealed a $1.6 million judgment on grounds that the jury returned
a "newsworthy verdict in hope and expectation that they would receive further
television coverage." 21 Yet another aftermath of the Florida "experiment" is the
first case headed for the U.S. Supreme Court in which the defendants claim that
the presence of television denied them a fair and impartial trial. 22
The current offensive
Soon after the Florida "experiment" was declared a success, television pr
pared for the pig push. Camera crews are not journalists; they are union techr
(continued on page
Dean 's Dicta
On Wednesday, March 12, 1980, the
University of Louisville School of Law
sponsored a debate between Professor
James R. Merritt and Judge Charles M.
Leibson on the related roles of theory and
practice in the education and training of
lawyers. This was not the first - and cer­tainly,
not the last - time this subject has
been discussed by legal educators.
From the time of the establishment ofl
the Inns of Court in rriedieval England,
lawyers have always beert concerned about
the balance between academic and skills
training in the preparation of members of
the Bar. In colonial America, George
Wythe, the first legal academician, taught
law to Thomas Jefferson and other leaders
of our young nation at the College of
William and Mary.
At Harvard Law School, Joseph Story
developed a law curriculum in the 1830's
that attracted a number of studen~ in-terested
in the theoretical aspects of the Dean Harold G. Wren
law. But skills training remained in the law
offices, and most persons were admitted to the Bar after "reading law" .
During the mid-nineteenth century, a number of law schools, including our own,
were established to provide academic training for future attorneys. The lecture
method was typically used to explain and analyze various fields of law. In the late
nineteenth century, Christopher Columbus Langdell introduced his famous "case
method" at Harvard. For many years the case method and the lecture method com­peted
with one another, but in the 1930's and 40's, the case method became domi­nant
in nearly every accredited law school. Throughout this period the emphasis in
legal education was placed almost entirely on the theoretical aspects of the law.
After World War II, the law schools introduced many skills training in both cur­ricular
and extra-curricular programs .
Beginning with moot courts and law reviews, law schools extended their pro­grams
to include training in a variety of practical skills. In our law school, courses
and seminars, client counseling, estate planning, trial advocacy, business planning,
arbitration and many others were introduced.
During the nineteen seventies, Chief Justice Burger, the American Bar Associa­tion,
and many others expressed great concern about the need for practical training
of lawyers. In 1978, our faculty increased the number of semester credit hours for
graduation from eighty-four to ninety to some extent in recognition of the need for
skills training. At the same time, the faculty introduced a required course in basic
skills in the first-year curriculum. In my view, the introduction of these additional
aspects to the law school curriculum has in no way jeopardized the fundamental
theoretical training which every law student must acquire while he is in law school.
Our school has sought to balance the theoretical and practical sides of legal
education. The curriculum committee and the entire law faculty will continue to
study the problem to make certain that we maintain a dynamic program, in keeping
with the latest advances in legal education.
Harold G. Wren
Dean
Circuit Court Judge Charles Llebson, left, and Prof. James Merritt, right, debated
aspects of a legal education on March 12, 1980.
"The mutual confidence on which all else depends can be maintained only by an
open minclbnd a brave reliance on free discussion ."
-Learned Hand
Let us know your point of view.
Letters to the editors should be typed and signed. T1le editors reserve the right to
edit letters for space considerations and for clarity.
4 ' I.·J ,· .. · .·.. ·
3
4 Louisville Law Examiner, April14, 1980
Ne"W" Placetnent Director
Stresses Continuity
by Tom Schulz
"It is extremely important to have con­tinuity
for a placement office to be effec­tive,"
Phyllis Liebson said soon after be­coming
the first "full-time" staff member
of the law school placement office.
A major factor Mrs. Liebson identified
in achieving this continuity is to have the
office run by a paid director: someone who
can devote the time necessary to establish
and maintain an effective service to stu­dents
and alumni.
Mrs. Liebson began filling that role on
March 1, funding for her position being pro­vided
as a part of the Dean's budget for
the law school. The current funds will run
out June 30. After that the plans are un­certain.
The current program, however, is at least
a step in the right direction. Dean Harold
G. Wren had said in his state of the law
school address last semester that "One of
the greatest needs of the law school at the
present time is the necessary funding for an
adequate placement program." Dean Wren
also said in the same address that place­ment
should be "placed in the budget as a
line item as soon as possible."
Though Mrs. Liebson's office hours are
only from 9 a.m. to 2 p.m., Monday through
Thursday, she is available for individual ap­pointments
if a student is unable to stop by
during those hours. Kevin Renfro, a second­year
student, also works in the office under
a work scholarship and is there Monday
through Thursday afternoons and all day
Friday.
Mrs. Liebson's major goal is to establish
an ongoing system, one that would con­tinue
from year to year. This would include
files for student use on prospective em­ployers,
especially on firms and govern­ment
agencies that have used the placement
office in the past. Also included in her
plans are files on individual students, their
placement goals and their achievements.
A placement officer is similar to a "middle
man" or broker, trying to match interested
students with the right firms, and interested
firms with the right students, she explained.
One of her projects in this respect is to
attempt to prepare a list of those employers
with interests in specific areas such as tax,
criminal law, etc. She has contacted the
Louisville Bar Association to get approval
and information for this project. It is a
matter of obtaining lists, she said.
"Ninety per cent of the job is working
with people," Mrs. Liebson said.
One aspect of the job is to inform the
student about the placement office, which
is kind of a public relations job. Adver­tising
the office's services to prospective
employers is an equally important aspect.
The most important service in this respect
is the on-campus interviews which the office
co-ordinates.
Mrs. Liebson has had experience as a vol­unteer
in a vocational office and has devel­oped
a background in vocational counsel­ing.
"I know what tools are necessary in
seeking a job," she said.
This is helpful in another area of the
office's services, student counseling. Ideally
this should begin when the student first
enters law school with an aim towards iden­tifying
goals and defining the student's
own skills.
"Also important is to learn the steps in
getting a job: writing a resume and devel­oping
interviewing skills. Interviewing itself
is good experience," she said.
The office also aids students in finding
clerking jobs while still in school as well as
finding jobs upon graduation.
First-year law school students can guarantee themselves a commission as an Air Force officer and a position as
an Air Force Judge Advocate officer through the Air Force ROTC Graduate Law Program.
The law student enrolled in the Graduate Law Program completes all the requirements for the Air Force ROTC
two-year program while attending the second and third years of law school. The Air Force ROTC program in·
eludes academic classes and attendance at a six-week field training encampment during the summer before the
second year of law school.
The student must be enrolled as a first-year student. Students should contact Capt. Bill Hutchersonn at (502)
588-6576 on the Belknap Campus.
Applications should be made by April 15. Selections are made each spring. Apply early. Applications will be
accepted after April15 as long as individuals can be scheduled to attend field training the summer before their
second year of law school.
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gets you an Air Force commis­sion
along with an excellent
starting salary, a challenging
job, promotion opportunities,
and a secure future with a
modern Air Force. If you have
two academic years remaining,
find out today about the two­year
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Placement Office Director Phyllis Liebson points to an area of Kentucky that is under­represented
by attorneys.
Mrs. Liebson views the placement office
as an integral part of the law school, a
service to incomeing freshmen as well as to
those looking for a job upon graduation
and also a service for alumni, both those
looking to hire and those looking for a
change in positions themselves.
She also points out the office is in a posi­tion
to promote the school through its grad­uates
and thus enhance the school's reputa­tion.
The reputational values is sometimes
invaluable to the individual searching for
a job.
With the recent hiring of Mrs. Liebson,
the placement office took a step forward.
The office began in 1976 as a part-time ven­ture
under the direction of law student
Dorothy Pitt. Her position was funded by
Judge Marlin Volz who had always headed
an informal placement service at the law
school.
The program continued with Judge Volz's
law clerk devoting about one fourth of his
time as placement officer. Susie and Bob
McBeath served in this position successively.
The Student Bar Association under presi-dent
Matthew Welch was successful in
obtaining two tuition remission scholar­ships
for students to work in the office.
, Each of the scholarships had a 90-hour
work limit. Kevin Renfro is working under'
the second of these scholarships. Gerald
Schray held the previous one.
The SBA has also published the senior
placement bulletin which had 1 10 participa­ting
seniors this year.
Mr. Welch said that Dean Wren had asked
the SBA for money to fund Mrs. Liebson's
position. Mr. Welch then discussed the
matter with Dr. Edward Hammond, Vice­President
of Student Affairs, in charge of
the University Placement Office. Dr. Ham­mond
offered to fund the position but stipu~
lated that the person hired would be under
his direction. Mr. Welch said Dr. Ham­mond
told him that it is "the Administra­tion's
job to find placement."
Dean Wren declined Hammond's offer
'"and instead fundedthe position through-the
law school's budget.
Mrs. Liebson, in discussing the placement
office's future, said, "I hope it continues."
News-In-Brief
Phi Alpha Delta fraternity recently
elected new officers for the 1980-81
year. The officers are: Timothy Scott,
Justice; Gail Kaukas, First Vice-Jus­tice;
Antonette Logar, Second Vice­Justice;
Jerrold Perchik, Treasurer;
Renona Browning, Clerk; Lucy Helm,
Marshall; and Scott Fur kin, Recorder.
The Delta Theta Phi fraternity has
announced its officers for the 1980-
81 year: Sharon Conyer, Dean; Wil­liam
Parks, Vice-Dean; Linda Thomas,
Clerk of the Rolls; Charles Mullins,
Ritual; Patricia Kerlick, Tribune;
Joseph D'Ambrosio, Bailiff; and
Phillip Castagno, Exchequer.
CORRECTION
In the March edition of the Exam­iner,
the evening Vice-President of
the Moot Court Board Sharon Welch
was mistakenly identified as Elenor
Welch. The Examiner regrets the re­porting
error.
Essay Contest Announced
Submission for a third Alan Y. Cole Law
Student Essay Contest on "The Exclu­sionary
Rule: Do We Really Need It?"
must be postmarked by June 30, 1980 and
sent to CJS staff offices.
Only students enrolled in ABA-approved
law schools may compete for the $300 cash
prize. Candidates for advanced law degrees
and ABA employees are excluded. Entries
may consist of a discussion of case law,
litigation techniques, or any legal discourse
which might further advance this field of
law. Papers prepared for the 1979-80
school year are eligible, but published
articles or those which have been accepted
for publication are not.
Each entry must have only one author;
be double or triple spaced and not exceed
50 pages, including footnotes. It must in­clude
the author's name, permanent and
temporary addresses and telephone numbers,
name of law school and year of the student.
The contest is named in honor of Alan
Y. Cole, Washington, D.C., in recognition
of his outstanding contributions to the Sec­tion
as 1976-77 Chairperson and as a long­time
Council member.
Submissions will not be returned. The
winner will be selected by a special three­member
judging panel of Section vol­unteers
and will be announced in July.
Send entries to: Coordinator, Law Student
Essay Contest, ABA Criminal Justice Sec­tion,
1800 M Street, N.W., 2nd Floor
South, Washington, D.C. 20036.
Louisville Law Examiner, Aprill4, 1980 5
Delahanty Sets Priorities For SBA
by Elizabeth Ward
Kevin Delahanty, the newly elected Presi­dent
of the Student Bar Association, feels
the law school is faced with several prob­lems
and has set the priorities for his admin­istration.
As it was under the previous SBA
administration, Mr. Delahanty stresses that
the "first priority right now is a permanent
placement office and a permanent place­ment
director. (Former SBA President)
Matthew Welch has obtained a lobby effort
with the administration and a temporary
placement director, Phyllis Leibson. At this
time, we are discussing with Dean Wren
and Dr. Hammond, who is Vice-President
of Student Affairs for the University of
Louisville, the possibilitr of the University
supplying some funds for a permanent
placement office and director."
At a recent meeting with Dr. Hammond
and Dean Wren, Dr. Hammond suggested
that the University of Louisville might find
some money in federal grants to fund a
permanent placement office. However, this
money would be contingent upon moving
the law school's placement office to the
Life Planning Center on the other side of
campus. Dean Wren disapproved of this
plan, expressing concern that lawyers would
not utilize a placement office that was not
directly connected with the law school, that
is, located in the law school building and
under control of the law school. "Matt and
I suggested that perhaps a compromise
would be in order and that the placement
office could be located within the law school
and controlled majorally by the law school
with the University having some control
over it," said Mr. Delahanty. "We did not
come to any consensus of opinion, with
Dean Wren sticking with his position that
the placement office should be under the
direct control of the University of Louis­ville
Law School. Dr. Hammond maintained
his position that in order to receive funds
from the general University, he would have
to have a placement office in the Life Plan­ning
Services with the overall University
Placement Services. We have a meeting
scheduled in April in which all parties con­cerned
will attend to further our plans for
a compromise.
"Dean Wren for the last four years has
submitted in his budget proposal for the
Law School funds for a permanent place­ment
office," Mr. Delahanty continued.
"However, Frankfort has consistently cut
the overall funding of the law school budget
and Dean Wren has insisted that there
isn't enough money to fund a permanent
placement office after these cuts. He is given
an overall figure, which he allocates accord­ing
to his priorities and thus far one of his
priorities has not been a permanent place­ment
office. I believe that the students need
and deserve a permanent placement office.
I don't care where the funds come from as
long as we have a permanent placement
office in the law school under control physi­cally
at this point by the law school. How­ever,
if in order to get these funds we have
to allow the Dean or Dr. Hammond some
control such as a telephone hook-up with
the Life Planning Services, that's fine with
me, as long as the placement office stays in
our building because a lot of us do not have
the time to go across campus in between
classes and utilize their services." Mr. Dela­hanty
believes that if funds are contingent
upon moving the placement office to the
Life Planning Services, he would not accept
them.
In the near future, the ABA is expected
to promulgate recommendations that a
permanent placement office is an ABA re­quirement
for all accredited law schools.
"The second SBA priority," explained
Mr. Delahanty, "is to change the grievance
procedure so that law students may utilize
this procedure to get rid of frustrations or
to make suggestions on improvement of
this University. The model grievance that
we have on file in the Dean's secretary's
office is not approved; therefore, it is not
the grievance procedure that we must go to.
I have learned through John Garner, Presi­dent
of the Student Government Associa­tion,
that the University of Louisville Law
School could not submit their proposal to
the University of Louisville Grievance Pro­cedure.
Therefore, the grievance procedure
we have upstairs is not in effect and any
grievances we have will have to be submitted
to the University. Our procedure and the
University's are very similar but I'm not
satisfied with either of them so this summer
I and the to-be-formed grievance procedure
committee will work to submit a proposal
and change our grievance procedure. Our
goal is to establish a policy which will per­mit
a student to go through an informal
grievance procedure to the Assistant Dean
with our grievance, let him judge the merit,
and then go on up to the Dean so he can
judge the grievance itself."
"A third priority at this time is more
minority representation in this Law School.
At this point in time, we are not in accord­ance
with the Affirmative Action Program
at this school. We have approximately 500
students in this Law School and there are
only 5 to 6 minority students attending.
This year 2 of those minority students will
be graduating leaving 3 black students in a
total population of 500 law students. This is
grossly out of proportion with the minority
representation we should have according to
the Affirmative Action Program. If we
don't make an effort to admit more black
students, more Puerto Ricans, or more
minority students, we will be under direct
attack of the ABA. We admitted 3 minority
students last year and all 3 flunked out. I
don't believe there is any racial discrimina­tion
against black students in this Law
School. However, I do believe there must
be a greater effort to not only recruit black
students but to form some type of program
so that it will enable them to compete with
white students on the law school level.
These programs will include an awful lot of
work such as tutoring services, teaching
people how to review and how to take
notes in the law school. Other facets of the
program, I cannot come up with now, but
I intend to work on it throughout the sum­mer.
I have talked to black students in this
school and have learned that there is an 80
percent to 85 percent attrition rate in minority
students. This may be due to cultural differ­ences;
however, I believe that it is not. The
University of Kentucky has a tremendous
minority recruitment program and they
have a great percentage of minority stu­dents
at their law school. I can't believe
they can succeed in training black lawyers
for the black community and the University
of Louisville can be so inadequate.
"My fourth priority is the grading sys­tem
at the this University. This is one of the
most hotly contested issues in the law
school. You cannot go throughout a .day
without hearing at least one sophomore or
one freshman griping about the low grades
received at this University. In my first year
we started with 105 students. Out of 105
students, approximately 75 were left at the
beginning of the second year. Still teachers
persist in grading on a A, B, C, D grade
curve. I don't understand how they can do
that when they already flunked out 30 per­cent
of our class. We have proved that
we're the A, B, and C students. We are
here and we are making an effort to learn
law and I don't think we should be arbitrarily
considered D students, especially after we
have gone through the first year. We are
graduate students and we have proved our­selves
in college. We have proved ourselves
on the LSA T scores and I believe we deserve
to be graded not on an automatic curve
system but according to our intelligence.
There are a number of grading systems
available. Professor Abramson suggested
last year, after reviewing the Bar results,
that this school should change its system to
a percentage system. I think this would be
more fair. I think students who received
D's that are 64 percent, 1 point from a C,
are aggrieved by getting this D because it
lowers their grade point no matter if it's a
60 or 64. A grading system utilizing a pro­portion
or percentage would more accurately
reflect our knowledge."
Mr. Delahanty also commented on his
expectations of cooperation from the law
school administration during his tenure as
SBA President. "What I hope is that they
will work with me in an effort to improve
the law school. I believe that we have a pro­fessional
administration dedicated to im­proving
our legal education; however, I be­lieve
that they have not listened to the student
body and the views we hold and are there­fore
holding one-sided viewpoints on most
of the issues.
"I believe that the professors are an ex­cellent
faculty and they probably place
most of their emphasis on training students
for the legal profession. As far as I can tell,
most are at least willing to listen to student
views and a number actually have been try­ing
to improve the school. I point out
Professor Abramson, especially, as holding
views very similar to what we · would need
and what the students desire: a more accurate
grading system, fewer hours for freshmen.
That the faculty and administration of the
school are dedicated to improving the legal
education is shown by their involvement
with continuing legal education program,
seminars with legal counseling and legal
training. Not only are they trying to give us
basis and theory of the law, but they are
also trying to train us for the legal profession
before we actually get out into the real world
and apply our knowledge. That is to be
commended. However, the faculty and the
administration seem to think that in order
to facilitate getting proposals or policies
through that it is easier and faster just to
avoid the students' opinions. They believe
that we are just going to mess up the proc­ess;
that we are going to drag and after
they can adequately protect and Improve
our law school without us. Until the stu­dents
actually have more contact with the
administration and teachers and have input
with the policies of the school, we will not
be able to get this law school to better itself
and compete with the better law schools.
The average student sees the faculty not as
a person with whom he can go to and talk,
but is scared of the professors, basing his
viewpoints on only in-class interaction
where the professor is all-powerful, all­knowing.
(Third-year student) Jim Seiffert
· is trying to implement a new program hav­ing
faculty advisors for a small number of
students. The students are to schedule
meetings with the professors every once ·in
a while so they can discuss problems with
the school, how to go about preparing
for their classes, how to schedule their sub­jects
of designated bar courses. When the
students feel the professors are on their
side and that they are there to help them,
our University will improve.
New SBA officers are: Jude Clark, Evening Vice-President; Teri Hasenour, Treasurer; Mike Luvisi, Secretary; Kevin Delahanty, Presi-/
dent; Ray Haley, Vice-President. (Not pictured is Darrel Coffey, LSD/ ABA Representative.) j
I
I
6 Louisville Law Examiner, April14, 1980
Aprile Addresses Trends
In Criminal Procedure
any young lawyer who has
made it through law school and
passed the bar deserves the best
by Greg Yopp
Recent weeks have not approximated the
basic nine to five routine for Assistant
Deputy Public Advocate J. Vincent Aprile,
II of the Commonwealth of Kentucky's Of­fice
for Public Advocacy. Mr. Aprile, who
is also a University of Louisville School of
Law Lecturer, was in Providence, Rhode
Island on February 25 presenting a three
hour continuing legal education program
and then on March 26, he was in
Washington, D.C. appearing before the
Supreme Court of the United States.
At the invitation of the Public Defender
of Rhode Island, Mr. Aprile presented his
continuing education program to the trial
and appellate public defenders as well as
members of the private defense bar in Pro­vidence.
The major topic of the presenta­tion
was "Hypnosis As A Method of
Reviving A Witness's Memory,:• which
focused on a defense strategy to combat the
proliferation of hypnosis as a law enforce­ment
tool in both the investigation and pro­secution
of crimes.
"This is a crusade that I am very active
·in," said Mr. Aprile. "I'm very frightened
of the misuse of hypnosis that is taking
place in the law enforcement area and the
criminal justice system."
According to Mr. Aprile, from five to
eight years ago people started attending
special seminars lasting from three to four
days where they studied how to be a non­theraputic
hypnotist. "What these people
believe is that memory is like a video tape;
that everything that happens to you, you
are storing like you are taking a picture of
it and it can be retrieved."
Under hypnosis the subject blocks his
conscious thoughts and retrieves sup­pressed
memories from his subconscious.
But, it has been proven clinically that sub­jects
under hypnosis are highly suggestible.
They want to help and as a result may pro­vide
answers they think the hypnotist wants
to hear. They honestly believe that what
they have come up with is actually the
truth.
Mr. Aprile learned much of what he
knows about hypnosis from one of the na­tion's
leading experts on the subject, Dr.
Martin Orne, who is a University of Penn­sylvania
psychiatrist. According to Mr.
Aprile, Dr. Orne believes that only
qualified doctors should employ hypnosis
for susequent court room use rather than
"hypno-investigators" who in essence
create an eyewitness whose new found
testimony will later be used in court.
"In hypnosis for theraputic reasons it is
true that the doctor hypnotises you and
asks you to recall an event, but a therapist
doesn't care if you recall reality or fantasy.
Whatever you believe and are suppressing,
if he can get that out, he can do away with
the side effects of it. But it does not have to
be reality. The hypno-investigators don't
realize that and, as a result, they believe
that anything that can be brought out is
true," said Mr. Aprile. "Under hypnosis
you will manufacture details. And the re­ally
incredible thing is you will become
locked in. The right of confrontation and
the right of cross examination under the
Constitution goes down the drain."
To combat the use of such hypnosis, Mr.
Aprile advocates the use of a simple
discovery motion whenever there is going
to be an eyewitness testimony in a case.
"They are using it. My big fear is we don't
know when they are using it. "
The remainder of Mr. Aprile's presenta­tion
was devoted to a discussion of the use
of experts in reading comprehension to
challenge the validity of a Miranda waiver
and the defense use of a "sanity" defense.
The challenge of the Miranda warning is
made on the basis of readability. The idea
is to bring in an educational expert to
VIncent Aprile
testify as to the level of educational reading
and listening oral comprehension ability
necessary to understand waiver. "Then see
what kind your client really has and show
that he could not have made a knowing, in­telligent,
and voluntary waiver because he
couldn't comprehend the words," said Mr. ·
Aprile.
On March 26, Mr. Aprile presented an
oral argument before the Supreme Court of .
the United States on behalf of the peti­tioner
in David Rawlings vs. Com­monwealth
of Kentucky. "It's a very
crucial case in the history of the Fourth
Amendment and I hope it's not one in
which I turn out to be a grave digger as op­posed
to a resurectionist," said Mr. Aprile.
Discussing the appearance, which is his
third before the Court, Mr. Aprile said,
"I was happy with the argument in the
sense that it was a very spontaneous thing.
I talked about five minutes and after that it
was all questions. They put me through the
paces, there is no doubt about that. But
that was much better than going out there
and putting on a show. They got my show
when they read my brief."
Recounting his law school days at the
University of Louisville where he was a
member of the National Moot Court team,
and relating it to what he knows now, Mr.
Aprile said, "if you really get involved in
the moot court program it can be a big help
to you in appellate argument later on. It is
a real model of what appellate argument is
all about."
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SBA President Kevin Delahanty and Matthew Welch present a composite picture of the
third-year graduating class to Dean Harold G. Wren.
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Louisville Law Examiner, April14, 1980 7
(continued from page 3)
cians hauling and handl ing costly equipment whose every move and minute must
be carefully budgeted. ABC's Steve Tello, who had run the broadcast pool for the
grol}ndbreaking Zamora affair, was assigned to the biggest show yet in the line of
legal spectaculars, the multiple college-girl sex murder trial of Theodore Bundy.
With its lurid and intimate details and type casting fitting the dramatic media
pattern, Bundy became the first nationally televised courtroom-originated real­life
horror show of the new era. It cost ABC an estimated $2 million to field the
crew and carry the event, a good investment by program cost and ratings stan­dards.
The judge, pronouncing his third death sentence, called the coverage,
"the most accurate reporting of a trial. " 23 Bundy denounced the coverage and
claimed that he had been victimized by media " sharks." Broadcasting magazine
declared "VERDICT IS IN FAVOR OF TV IN BUNDY TRIAL." 24
Emboldened by their successes and impatient with legal inhibitions, the media
launched a two-pronged offensive. Typical of one approach was a "First Amend­ment
Survival Seminar" sponsored by the National Association of Broadcasters
and other organizations in Washington on March 10, 1979. Jack Landau, director
of the Reporters' Committee tor Freedom of the Press, told the meeting that courts
think they are "above the laws of the country." The press should tight back "on
our own turf," he said, referring to media campaigns and coverage. A Supreme
Court correspondent urged his colleagues: "Don't try to join the system - beat
it." He thought that "Time has surely come to use tricks" such as hidden record­ers
and parabolic microphones to pick up court proceedings. 25 A few months
later the industry moved to set up a " First Amendment defense" insurance pro­gram
to cover legal fees in cases involving access to information. 26
The other prong of the offensive is more circumspect. An example was the
careful staging of a demonstration of "cameras in the courtroom" at the August
1979 Dallas meeting of the American Bar Association. Invited by the ABA, fea­turing
a debate and a mock TV trial, the demonstration was designed to show, in
the words of National Association of Broadcasters President Vincent T. Wasilev­sky,
" how effectively the electronic media can operate without any interference
with the dignity and decorum of the proceedings." 27
Steve Tello of Zamora and Bundy fame was again pressed into service. Learning
a lesson from Atlanta, camera crews donned pin stripes and were reported "almost
indistinguishable from conservatively dressed ABA members." Cables were
tucked down air conditioning ducts. The formal briefs used in the mock appellate
proceedings were included in a booklet entitled "Cameras in the Courtroom: A
Presidential Showcase Program" and distributed at the convention. Broadcasting
magazine headlined the affair "TV in its Sunday Best for ABA demonstration,"
and concluded: "No muss, no fuss: It was an example of what television tech­nology
and professionalism can do in 1979." 28
Conflicting missions
But dignity, decorum, technology, and professionalism are not the issues.
Televi sion in its "Sunday best" is an institution with its own goals and mission.
Collaboration with media, when not strictly codified, is a cottage industry in trading
confidences. Those who have played the game the longest describe its rules in a
study of congressional committee hearings and the media: (1) accept reporters'
detmitions of what constitutes news, (2) accommodate inquiries, (3) ask tor ano­nvmity
tor staff members (4 tl) to get some cred t for the boss. 29
Te1ev1sing Con res u der Congress1ona1 rather than television industry con­trol
predictably detracts from its entertainment values. The camera is usually
trained on the Speaker's platform and on the tables where f loor leaders operate.
It rarely it ever picks up a dozing member, empty seats, reaction shots and other
potentially embarrassing sights. The networks that campaigned tor coverage
under their control now found only a few snippets of the video feed suitable tor
their purposes. In the first SIX months of gavel-to-gavel coverage, ABC and NBC
used about 12 and CBS 19 pieces.
The potent ial of audience appeal in selected trials is much greater. Already
sex, gore, madness, and bizarre scenarios dominated the real-lite television court­room
scene, using real trials to confirm the fantasy image of justice on television.
With the prospect of TV rather than the courts calling the shots, it may be instruc­tive
to consider the record of the press in using its rights to defend the rights
of others, especially those with no money, clout, or popular appeal.
A study of metropolitan newspapers' coverage of First Amendment cases be.­fore
the Supreme Court shows considerably greater concern with press rights
than with the other basic freedoms. The study suggests that press advocacy of
freedom is largely self-serving and could not be expected to help uphold rights
inimical or irrelevant to its own. 30
The press also has a poor record of using information made available by the
courts. Of the most significant verdicts reached by the California Supreme Court
and released to the press, a sample of 10 state dailies reported one-fifth. Only
conflict on the court helped draw press attention to a case.31 The first time the
media ever paid sustained and compelling attention to the U.S. Supreme Court,
even going to the extent of serializing the story, was the appearance of the per­sonalized
account of a thousand leaks, The Brethren by Bob Woodward and Scott
Armstrong. 32
In the most sensitive area of citizens' rights, the area of crime reporting, the
media work closely with the police and generally follow what one survey of re­search
calls "the police version of crime."33 Most studies agree that crime news
generally gives a misleading and prejudicial account of the frequency and nature
of crime in a community34 and that such coverage provides the media "with a
vehicle for communication to readers of the necessity for strong social controls."35
Broadcast coverage is, if anything, the most slanted toward the police view of
due process, especially since the minicam gave crews the ability to follow police
Ups to the field and to concentrate on the violent and the spectacular. A 14-week
survey of community coverage found the programming "often arbitrary, super­ficial,
or both," a casualty of "the so-called 'realities' of the TV Industry ... " 311
AT THE POINT OF "0 RETURN .
Television presents a coherent world of Images and messages serving Its own
institutional Jnterests. The question is whether the judiciary should be enlisted
to add further credibility to media mythology. Plugging courtrooms into the tele­vision
system can make them appendages of that system. Once televised trials
attract a large national following, the process will be irresistible, cumulative,
and probably irreversible. ·
The scenario unfolding now is what Chief Justice Warren warned against when
he wrote with the majority in Est~s .v. Texas that "the tel~vising of criminal trials
is inherently a denial of due process." Believing that the case at hand was only
"a vivid illustration of the inherent prejudice of televised criminal trials," Warren
wished to "make a definitive appraisal of television in the courtroom."
In doing so, he predicted, with uncanny foresight, the entertainment pressures
upon the selection and treatment of trials; the impact of notoriety upon partici­pants,
including jurors returning to their communities; the problem of impartially
re-trying a case after wide national exposure; and the likelihood that defendants
who have attracted public interest and find their " trial turned into a vehicle for
television . . . are the very persons who encounter the greatest difficulty in se­curing
an impartial trial even without the presence of television." Chief Justice
Warren concluded that " the television industry, like other institutions, has a
proper area of activities and limitations beyond which it cannot go with its cameras.
That area does not extend into an American courtroom . . . Where the lives, li­berty,
and property of people are in jeopardy, television representatives have only
the rights of the general public, namely to be present, to observe the proceed­ings,
and thereafter, it they choose, to report them."37
There is no doubt that, whatever its general social functions, television has
enriched the horizons of many who have been out of the cultural mainstream
ever since the coming of print-oriented culture. Television can also spread occa­sional
superb insight and enlightenment. England's BBC has broadcast the trials
of France's Marshal Petain, of the Irish patriot Roger Casement, and of the Chi­cago
Seven before Judge Hoffman. U.S. networks aired "A Case of Rape," "The
Rosenberg Case," "The Execution of Private Slovik," and the "On Trial" series of
historical cases. These were all dramatic enactments, with occasional documen­tary
footage, trying to go behind the scenes and to illuminate the invisible but
all-important principles of justice in a calmer historical perspective. Instant tele­casting
of live trials - television at its spontaneous best - is likely to achieve
the opposite.
The political opportunities inherent in the shifting balance of powers will become
more and more compelling. Now about 10 percent of the electorate can identify
any judicial candidate during an election. A television trial can easily multiply
that tor the chosen candidate. (Will others ask for equal television trial time?) As
a system of mutual accommodations and payoffs develops, controls and inhibi­tions
are likely to fall by the wayside.
Neither history nor existing research support the contention that the addition
of instant video spectacle to current court coverage would enhance fairness,
freedom, public understanding, or needed court reform. The record reflects a his­tory
of institutional cross-purposes that the addition of scenes of real-life court­room
drama selected and edited for general television audiences is more likely to
magnify than to rectify.
Only an immediate moratorium on televising trials can provide time and the
opportunity for responsible action. In the face of demonstrated conflicts and
incalculable risks, the burden of proof must shift from the potential victims to
the proponents of trials by television. It is with some trepidation that I even sug­gest
research lest it become an excuse for pressing forward " until all the data
are in."
The research cannot take short-term overt manifestations and opinions at face
value. Unless it investigates the enduring inst itutional consequences of sustained
exposure to televised trials, it is worse than no research at all; it becomes a window­dressing
for foregone conclusions.
A two-stage design may provide the framework for meaningful investigation.
Stage 1 would be the reliable and objective analysis of a representative sample
of televised trials and segments of trial s. Stage 2 would be a systematic assess­ment
of the relevant conceptual and policy consequences of exposure to these
telecasts.
To continue toward a national system of television t rials risks passing the point
of no return. Research beyond that point is a waste and an illusion. However,
coupled with a moratorium, research on a appropriate scale would be a respon­sible
and pioneering way to build a basis for future decisions. The research would
systemat ically test relevant conceptions and behaviors of participants and mem­bers
of their communities and, most importantly, it would assess conceptions
of the judicial process that television trials cultivate in the minds of the viewers.
Without such research, and unless the results warrant further action, the interests
of justice and the rights of citizens are best served by a flat "No" to trials by
television.
10. Francis Haskell, "Yesterday's Today Show," The New York Review of Books, October 12, 1978, p.
55.
11 . The New York Times, June 25, 1979.
12. Cited in Mass Media and the Supreme Court, edited by Kenneth S. Devol. New York: Hastings
House, 1971, p. 318.
13. Stephen Zito, "Hollywood Versus the Press," American Film, May 1978.
14. Leona Floren, "The Camera Comes to Court," Freedom of Information Center Report No. 396,
University of Missouri, October 1978.
15. William E. Francois, Mass Media Law and Regulation, Second Edition. Columbus, Ohio: Grid, Inc.,
1978, p. 272.
16. Devol, p. 313-318.
17. For a detailed account see Frank W. White, "Cameras in the Courtroom: A U.S. Survey,"
Journalism Monographs No. 60, April1979.
18. From a personal communication by Joel Hirschhorn, one of the attorneys testifying in the case.
19. The United States Law Week 12-4·79, 48 LW 2383.
20. Freedom of Information Digest, University of Missouri, September-October 1979, p. 1.
21. Broadcasting, October 17, 1977, p. 25.
22. Chandler and Granger v. State 366 So.2d 64 (FLA. 3rd DCA 1979) Appeal dismissed, cart. denied,
public question moot, So. 2d (FLA. Sept. 27, 1979) Stay of mandate granted Supreme Court S.Ct.
(Jan. 11, 1980)(Powell, J. in chambers).
23. Variety, October31, p. 73.
24. August 6, 1979, p. 29.
25. Broadcasting, March 26, 1979, p. 104.
26. Broadcasting, OctoberS, 1979.
27. Broadcasting, July 30, 1979, p. 69.
28. Broadcasting, August 20, 1979.
29. Susan H. Miller "Congressional Committee Hearings and the Media: Rules of the Game,"
Journalism Quarterly, Winter 1978, p. 659. ·
30. F. Dennis Hale, "A Comparison of Co¥erage of Speech and Press Verdicts of Supreme Court,"
Journalism Quarterly, Spring 1979, p. 43.
31 . F. Dennis -Hale, "Press Releases vs. Newspaper Coverage of California Supreme Court Decision,"
Journalism Quarterly, Winter 1978.
32. New :York: Simon & Schuster, 1979.
33. Sanford Sherizen, "Social Creation of Crime News; All the News Fitted to Print." In Deviance and
Mass Media edited by Charles Winick, Sage Publications, 1978, p. 222.
~- See, for example, E. Terrence Jones, "The Press as Metropolitan Monitor," Public Opinion
Quarterly, 40;1976, pp. 239-244.
35. Matthew Lippman, "The Law of Contempt: Fair Jury Trials and Free Press in Australia," Australian '
SCAN; Journal of Human Communication, No.5, December 1978-May 1979. ·
36. From a survey by the Lab for Public Affairs Television at the New School's Center for New York
City Affairs, reported in Broadcasting, February 20, 1978, p. 60.
37. Devol, pp. 317, 320,321 .
I I
I
8 Louisville Law Examiner, Aprill4, 1980
Journal
of
Family Law
Articles
Appearing in Vol. 18, Number 2
• The Proper Role of Psychology in Child Custody Disputes
. . . . . . . . . . . . . . . . . . . . . . . . . by Litwack, Gerber and Fenster
• The Supreme Court's View of Marriage and the Family: Tradi­tion
or Transition? . . . . . . . . . . . . . . . . . . . . . . . . by Peter Riga
• Legal Aspects of Artificial Insemination .. by Jeffrey Shaman
Book Reviews • Unmarried Couples and the Law . .. .. .. .. by G. Douthwaite
• Having Babies .. . ... ... ... .. ...... .. by Charles Kindegran
Notes • Home Instruction: An Alternative to Institutional Education
Issues Presented by Analysis of a Representative Case:
• Consent to Adoption as • Appointed Counsel in Paternity
Abandonment Action
• Parental Consent for Minor's • Damages for Mother's Anxiety
Abortion About Injury to Fetus
• Choice of Surname of • Parental Consent to Search of
Child Child's Property
• Notice to Father in • Infant's Action for Wrongful
Guardianship Action Life
Summaries of Over 50 Recent Cases in the area of Family Law
Mail Orders to:
Managina Editor
Journal of Family Law
University of Louisville
School of Law
Louisville, KY 40208
D Vol. 18, No.2 ($4.00)
D Vol. 18 ($15.00)
Name _____________________________ __
Address-----------------------------
City _______________ State ____ Zip
A Quarterly Publication of the University of Louisville School of Law
Congratulations to Woody's Athletic Club:
U of L Intramural Basketball Champs
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40208
Non-Profit
Organization
U.S. POSTAGE
PAID
Permit No. 769
Louisville, ~y
John M. Harlan Loui' D. B'Ondei' f' .
Louisville \,
Law Examiner
Volume 5
Number6
April 14, 1980
Prof. Irving
Younger lectures
on the law
of evidence
... page 1
The School
of Law
has a new
placement
office director
•.. page4
In the photo
at right,
Prof. Abramson
takes advantage
of the Spring
weather,
holding his
Advanced Criminal
Procedure class
in the law
school's courtyard.

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Louisville Law Examiner
Serving The University of Louisville School of Law Community
Volume 5, Number 6 Louisville, Kentucky, April 14, 1980
Law School Fields Two Teams
In National Competition
by Pat Chism
After defeating an Ohio State Law
School team by a large margin, a team
from the University of Louisville School of
Law in the Sixth Circuit Moot Court Competition
fell before the eventual winner,
Capital University of Columbus. The competition
was held at the University of
Akron on March 7. Stephanie Miller and
Matt Livingood comprised the Louisville
team, which was accompanied by faculty­advisor
James J. Ragan.
"We beat ourselves in the second
round," said Mr. Livingood. "The others
were less able to think on their feet, but
they had reviewed the case so much that
their responses were automatic. We think
better on our feet. We just came up short
on the questions." Prof. Ragan agreed that the Capital
team was "finely honed. Capital places
a great deal of emphasis on appellate argument.
They had probably argued this par­ticular
problem ten to fifteen times before
they came to the regional." Ms. Miller
said, "It was like being up against a bunch
of robots." But Prof. Ragan felt that they
measured up well against the other teams.
The two teams from Capital finished
first and second in the Circuit competition.
They both go on to participate in a national
competition to be held in San Francisco
during the national ABA convention in
August.
Twenty-one teams competed in Akron,
with most being from Ohio. The team from
Louisville and one from the Chase School
of Law were the only teams representing
the state of Kentucky, said Ms. Miller. The
competition is sponsored by the Law Stu­dent
Division of the ABA.
Each team was assured two rounds.
Finalists were determined by a "power
pairing" approach and, if a team won both
rounds, it automatically advanced. The
vacancies in the field of eight semi-finalists
were filled by the teams with the highest
point differentials. U of L's team defeated
Ohio State by 33 points and lost to Capital
by 10 in a split decision, making their dif­ferential
23 points which was not enough
to advance.
"I do it because I enjoy it," said Mr.
Livingood, in commenting on the competi­tion.
''I think people are selling themselves
short if they don't try out for these types of
things. I know for one thing, it is looked on
favorably on resumes." Mr. Livingood has
become accustomed to appellate competi­tion,
as this is his second year on the Sixth
Circuit competition, and he has also par­ticipated
on the National Moot Court team
from U ofL.
"I got into it mostly because I have a
fear of speaking," said Ms. Miller. "I
knew I would have to get over it. It is better
to do that now than in an actual courtroom
situation."
"What is helpful for people in there for
the first time is to know that everyone else
up there is as scared as you are," she said.
"After it was over I was so hyped-up that I
wanted to get in there and argue it again.
We didn't get much sleep so I guess I was
running on pure adrenalin."
The problem involved nine constitutional
issues and was argued as a case of first
impression in the "court." It dealt with a
private contractor who was building low in­come
condominium units. The city con­demned
the property they were building on
for a sewage plant, motivated, claimed the
builder, by discrimination to prevent the
project. The city counterclaimed saying
they had a right to condemn, and that the
units were to have an illegal racial quota
anyway. A standing issue was also raised.
The teams were given opinions of a dis­trict
court and a court of appeals. They had
to research the issue from there for the
"Supreme Court" argument. "I learned
how to research a case in the nitty-gritty,"
said Ms. Miller.
There were only four people who tried
out for the team this year. Prof. Ragan at­tributed
part of the poor turnout to the
timing of the competition. In the future,
the Moot Court Board plans to promote it
more, he said. Mr. Livingood felt it was a
matter of developing school pride in this
aspect as the Ohio schools have done while
Ms. Miller said that having two teams from
the school would give the school a much
better shot at winning.
Client Counseling Team
by Craig Bell
On March 8, 1980 the School of Law was
also represented by a team composed of
second-year day-division students Ray
Haley and Ernest Caposela in the regionals
of the National Client Counseling competi­tion
held in Lexington, Kentucky. The
event, which is sponsored by the American
Bar Association for the purpose of expos­ing
law students to the problems an at­torney
may face while counseling clients,
attracted about 120 law schools to the com­petition
nationally.
According to Mr. Caposela and Mr.
Haley, they learned of the competition
from Professor Marlin Volz through his
Legal Counseling seminar. Prof. Volz
served as the team's advisor and provided
video tapes of past competitions for the
team to observe so that they would be
familiar with the format of the event and
have some idea of what to expect in the
competition. He also arranged for a
number of attorneys to discuss client
counseling problems with the team over
dinner at Masterson's Restaurant.
Mr. Haley and Mr. Caposela felt that
time limit restrictions were a major reason
that they were eliminated in the first round
of competition by Thomas Cooley Law
School of Detroit, Michigan, which went
on to win the regional competition. The
problem faced by the team involved giving
legal ~dvice to a widow regarding business
partnerships, decedents' estates, and
ethical considerations. One psychologist
and three attorneys served as judges for the
event.
Mr. Haley believes that a great portion
of the competition deals with the need of
an attorney to present a theatrical-like per­formance
to the client and that making the
client feel comfortable while talking to the
attorney is of primary importance.
Both Mr. Caposela and Mr. Haley stated
that the competition was very worthwhile
and expressed a hope that more U of L law
school students would become involved in
the competition next year.
Matt Livingood and Stephanie Miller represented the
School of Law in a Sixth Circuit Moot Court Com­petition
held on March 7.
Ray Haley and Ernest Caposela participated in a Client Counseling com­petition
held on March 8. Prof. Marlin Volz, center, served as the team
advisor.
Circulation 4100
Irving Younger
Prof. Younger
Gives Lectures
On Evidence
On April 10, the Louisville Law Forum
sponsored two lectures by Cornell Law
School Professor Irving Younger. Prof.
Younger is presently the Samuel S. Leibo­witz
Professor of Trial Techniques at
Cornell.
Because of his wide-ranging experience
in courtroom practice. Prof. Younger is a
nationally respected authority on the subject
of evidence. He is chairman of both the
Trial Advocacy Section of the American
Association of Law Schools and the Com­mittee
on Teaching of Trial Advocacy for
the Litigation Section of the American Bar
Association.
In addition to previous faculty positions
at Harvard and Columbia University Law
Schools, Prof. Younger served for several
years as an Assistant U.S. Attorney in New
York and later as a Judge of New York
City's Civil Court. He is a 1958 graduate
of New York University Law School where
he served as editor-in-chief of the law re­view.
During his first lecture at I :00 in the
Allen Courtroom, Prof. Younger delivered
a spirited, step-by-step account of the
famous espionage trial of Alger Hiss. He
discussed each phase of the evidence that
had been presented, pointing out particular
impeachment techniques used against some
of the 112 witnesses who testified, and
ended with an animated summation for the
prosecution.
At 8:00, Prof. Younger addressed a
specific aspect of trial practice evidence, the
examination of expert witnesses. He empha­sized
that the "cross-examination of an ex­pert
should be fun rather than intimidating
... If you don't bloody an expert every
time you have the chance on cross-examina­tion,
shame on you ."
A reception was held in the Cox class­room
after the lecture.
The Law Forum also hosted a dinner for
Prof. Younger before his second lecture.
Among those persons who attended were
Kentucky Supreme Court Justice Marvin
Sternberg, Circuit Court Judge Charles
Liebson, District Court Judge Olga Peers
and Louisville attorneys Larry Franklin and
Gary Weiss.
2 Louisville Law Examiner, April14, 1980
Letter to the Editor
Dear Editor:
The Moot Court Board recently voted to
postpone the voluntary rounds of the
Pirtle-Washer competition until the fall
term. It seems that several members of the
first year class felt that it was unfair to ask
them to compete again this term. A petition
was hastily circulated and presented to the
Board.
I was, and still am, against shifting the
bulk of the competition to the fall term. I
had no vote on the matter since I am no
longer on the Moot Court Board, but for
the record I would like to explain my point
of view.
First of all, there was no master plan to
make it rough for the first year class. That
is pure paranoia. The program was struc­tured
by students, most of whom par­ticipated
in the advanced rounds their first
year here. This is a professional school and
therefore it requires a higher standard of
competence and devotion than under­graduate
school.
Secondly, shifting the bulk of the com­petition
to the fall effectively destroys the
National Moot Court competition for
those who will be second-year students next
year. The sizable number who signed up to
continue in the Pirtle-Washer competition
won't be able to participate in both effec­tively.
The present sign-up list will require
five rounds to pick the finalists. They will
certainly be experienced, but they cannot
compete here and in another city
simultaneously.
I think a legal education should include
more than class attendance. The various
competitions provide an excellent op­portunity
to learn valuable skills. I can't
suggest strongly enough that everyone push
themselves a little to participate in these
competitions. The more competitors the
better the team selected. And the better the
team selected the greater the chances that a
team from this school will place nationally.
That bolsters the reputation of the school
and cannot hurt job prospects down the
line.
Most day students clerk their third year.
They have one foot in the "real world" and
want nothing more than to put the trailing
one in the same place. Employers are not
blind to the fact that doing something out­side
of class requires a little chutzpah. That
is why I feel so strongly about the various
competitions in the second year.
In conclusion, I feel that a number of
events culminated in an unfortunate result.
The National Moot Court will lose the
benefit of a lot of energy. I hope the new
Moot Court Board will find a way to over­come
some of the obstacles that seem to ap­pear
every year. The program has only
been in the hands of students for a short
time. Some progress has been made, but
there is still much more that can be done to
make the progams more enticing and more
competitive. The only limit is the students'
willingness to improve this situation for
themselves and those who will follow.
Frank Burnette
New Officers for 1980-81 Law Examiner
Edlton of the Loulsvllk Lllw Emmlner for 1980-81 are, from left: leff Wade, Brandeis
Brief Editor; Tom Schultz, Managing Editor; Elizabeth Ward, Editor-in-Chief; Frank
Bush, Associate Editor; (standing) Craig Bell, Associate Editor; John Wright, Business
Manager; and Scott Furkin, Photogaphic Editor. Gerald "Bear" Schray, Art Editor, was
sitting under the table.
Louisville Law Examiner
EDITORIAL BOARD
Sam B. Carl, Editor-In-Chief
Greg Yopp, Managing Editor
Elizabeth Ward, Associate Editor
John B. Wright, .Jr., Business Manager
Pat Claillm, Photoarapbic Editor
Scott Farkla, .Photoarapber
·Gerald "Bear" Schray, Artht
STAFF
Jeffrey L. Wade, Brandeis Brief Editor
CraiJ Bell, Articles Editor
Pat Chism, Projects Editor
Andy Altman
FraakBusll
HaiiSaaden
Tom Schulz
· ,JudRr MARLIN M. VOLZ. Advisor Professor A tBt:RT T. QUICK, Consultant
The Louis.-ilte /_aw Examiner is .published eight timt'S durin~t the academk ~·ear in lht>
Interest of tllr University of touisville School of l .aw commonit)·. Unsi~tned editorial opinions
are thflse represenlinR a Rlajority vt~e of the editorial board and do not neressarit~· expt"t>Ss the
views of the School of Law or the Univtrsit~· of Louisvillt>.
Articles are invited from facull)· members. students, and members of the bar "·Ito wish to do
freelance work, but any proposed arlide must be dt>ared in ad\'ant·e with lht> editor as to topk
and length. This is to avoid duplication nf wnrage and insurl' that lht• artidt> "ill nnl be
beyond workable length fctr a newspaper fnrmal .
Address all communications to the Louisville Law Examiner, School of Law, University of
Louisville, Louisville, Kentucky 40208. Phone 502-588..(i398.
11Brandeis Brief'' Series
Emerging Legal Issues
Trial by Television:
Point of No Return?
PART II
By George Gerbner
The Annen berg School of Communications
University of Pennsylvania
INSTITUTIONAL CROSS-PURPOSES
Entertainment is the cultivation of conventional morality. it " entertains" the
basic values and norms of the community and cultivates conformity to those
norms. An imporant part of that is the exploitation of popular prejudices and the
cultivation of public support for the suppression of threats and challenges to
the social order.
From the arenas of the Roman empire to the present, show trials, highly pub­licized
confessions, public tribunals and executions have formed a part of that
process. The most widely frequented shows in London just emerging from the
middle ages were "public executions; and even after these were abolished, atten­dance
at murder trials remained as a more socially restricted but nevertheless
much sought-after entertainment. A visit to a hanging might well, one presumes,
have followed a gentle prodding with a stick of some madman at Bedlam." 10
· The great show trials and public confessions of the twentieth century occurred
under dictatorships and periods of witch hunt in democracies. They were a part of
the ·entertainment mainstream, now joined by much of what we call news, com­pelling
attention, exposing deviation, spreading fear, and cultivating conformity.
The most recent state to use television trials in a systematic way is the new
Islamic government of Iran which broadcast them and aired "full confessions"
nightly on television. 11
Tempering the swift and powerful tides of the cultural mainstream are the pro­tections
provided by those specialized institutions whose integrity is essential
for the survival of self-government, if not of the human spirit. These institutions
adjust the social order to a plurality of interests and hold out the possibtlity of
peaceful reform and renewal under changing conditions. Perhaps the most impor­tant
are the legal protections afforded those accused of deviating from the norms
of conduct, particularly in ways most likely to draw media attention.
The struggle to remove trials from the public arena parallelled the fight against
secret proceedings, the Star Chamber. In fact, the two are sides of the same coin.
Arbitrary power wants no public witness to its private deliberations but needs all
the hoopla it can get to legitimize its actions.
The integrity and independehce of judicial proceedings serve to protect the
accused from both arbitrary power and public prejudice. The purpose of open
trials is to help assure observance of these protections, not to entertain or even
to educate. The legitimacy of a legal system does not derive from immediate pop­ular
approval of court decisions. The vigilance of a free press is needed to prevent
judicial abuse and the erosion of the legal protections of a fair trial, but not to add
the pressure or popular clamor to the proceedings.
Reasons for Canon 35
General entertainment and specific rights have never mixed well. Chief Justice
Warren pointed out in Estes v. Texas that "In the early days of our country's de­velopment,
the entertainment a trial might provide often tended to obfuscate its
proper role." And he continued. citing other accounts:
The people thought holding court one of the greatest performances . . .
the country folk would crowd in for ten miles to hear these 'great lawyers'
plead; and it was a secondary matter with them whether he won or lost his
case, so long as the 'pleading' was loud and long.
In early frontier America, when no motion picture, no televison, and no
radio provided entertainment, trial day in the country was like fair day, and
from near and far young and old converged on the county seat. The criminal
trial was the theater and spectaculum of old rural America ... All too easily,
lawyers and judges became part-time actors at the bar ... 12
When functions of public entertainment and civic responsibility shifted to the
press, new problems emerged. Crime and court reporting were the big guns in the
circulation wars of the 19th century. They were also weapons of the press on the
way to establishing itself as the organ of business community rather than of local
governments and parties on whose patronage it had to depend before. In that
process, the press shook up some bloated and venal local administrations, police,
and court systems. It also laid claim to conduct trials by newspaper for what
James Gordon Bennett of the New York Herald called the "living Jury of the Na­tion,"
ignoring the essential contrast between jury box and arena.
The rise of movies as competing mass entertainment made Hollywood the
"sin capital" lucrative and lrrestible copy. Movie comedian Roscoe "Fatty"
Arbuckle was charged with the rape and murder of a starlet in a hotel room in
1921. The accusation was instantly leaked. The arrest was staged for reporters.
William Randolph Hearst said that the trial sold more newspapers than the sink­ing
of the lusitania. The press coverage firmly established Arbuckle as "villain
incarnate, a gross vulgarian of obscene appetites."13 The resulting public agita­tion
and the threat of legislation forced the movie industry to start its Production
Code. After three trials Arbuckle was found not guilty but was ruined and died
in disgrace a decade later.
The American Bar Association appointed a special committee in 1924 to curb
"unwholesome tendencies" in news reporting. The committee reported in 1927
that "There can be no more opportune time than the present for the press to cease
(continued on page 3)
, I
Louisville Law Examiner, April14, 1980
making vulgar amusement of our law enforcement institutions ... " Instead, how­ever,
crime photographers entered the courtroom, disrupted proceedings and
sneaked pictures of convicted murderers dying in the electric chair.14
The 1935 trial of Bruno Richard Hauptman, accused of kidnapping the twenty­month
old son of Anne and Charles Lindbergh, attracted an army of reporters
and photographers. The American Bar Association called the Hauptman trial
"the most spectacular and depressing example of improper publicity and pro­fessional
misconduct ever presented to the people of the United States in a crim­inal
trial." 15 The ABA passed Canon 35, a ban on cameras and microphones in
the courtroom. But two more landmark cases had to exact their high price in pub­lic
understanding and justice before the lesson sunk in - at least temporarily.
They were the 1954 murder trial and conviction of Dr. Sam Sheppard and the 1965
swindle trial and conviction of Billie Sol Estes - both eventually reversed be-cause
of massive, pervasive and prejudicial publicity. ·
In the latter case, the "circus atmosphere" prevailing at the trial, inevitable
in the days of hot lights, heavy cameras, and massive cables, has received the
lion's share of attention in causing the reversal of the conviction. Actually, how­ever,
other considerations, as valid today as they were then, if not more so, weighed
heavily in the decision of the Court, as a few excerpts from Mr. Justice Clark's
majority opinion will indicate:
We start with the proposition that it is a 'public trial' that the Sixth Amend­ment
guarantees to the 'accused.' ...
It is said, however, that the freedoms granted in the First Amendment ex­tend
the right to the news media to televise from the courtroom, and that
to refuse to honor this privilege is to discriminate between newspapers
and television. This is a misconception of the right of the press . . . The tele­vision
and radio reporter has the same privilege. All are entitled to the same
rights as the general public ... As has been said, the chief function of our
judicial machinery is to ascertain the truth. The use of television, however,
cannot be said to contribute materially to this objective. Rather its use
amounts to the injection of an irrelevant factor into court proceedings ...
. . . From the moment the trial judge announces that a case will be tele­vised
it becomes a cause celebre ... The whole community, including pro­spective
jurors, becomes interested in all the morbid details surrounding it
... And we must remember that realistically it is only the notorious trial
which will be broadcast because of the necessity for paid sponsorship ...
If a community be hostile to an accused, a televised juror, realizing that he
must return to neighbors who saw the trial themselves, may well be led
'not to hold the balance nice, clear, and true between the State and the
accused .. .'~ ..
. . . We know that distractions are not caused solely by the physical
presence of the cameras and its tell-tale red lights. It is the awareness of
the fact of telecasting that is felt ... throughout the trial ...
... The impact upon a witness of the knowledge that he is being viewed
by a vast audience is simply incalculable ...
While some of the dangers mentioned above are present as well in news­paper
coverage ... the circumstances and extraneous influences ... in the
televised trial are far more serious ...
A major aspect of the problem is the additional responsibilities the pres­ence
of television places on the trial judge. His job is to make certain that
the accused receives a fair trial ... Our jduges are high-minded men and
women. But it is difficult to remain oblivious to the pressures that the news
media can bring to bear on them both directly and through the shaping of
public opinion. Moreover, where one judge in a district or even a State per­mits
telecasting, the requirement that the others do the same is almost
mandatory. Especially is this true where the judge is selected at the ballot
box.
Finally we cannot ignore the impact of courtroom television upon the
defendant ... A defendant on trial for a specific crime is entitled to his day
in court, not in a stadium, or city or nationwide arena. The heightened pub­lic
clamor resulting from radio and television coverage will inevitably result
in prejudice. Trial by television is, therefore, foreign to our system ... 16
Recent trends
Foreign or not, its day has come. Memories of trials by newspaper and the fias­cos
of Sheppard, Estes, and lesser cases made most courts hold back, except in
Colorado where the trial of Black Panther LaurenT. Wilson was televised in 1970.
Then the drawing power of the Watergate impeachment hearings and the lure of
sensational trials led to mounting media pressure on the courts. Murder cases
were televised in the states of Washington, Utah, Nevada, and Indiana. In an Ohio
test case, the defendant, charged with the rape and murder of a 9-year-old girl,
was allowed to be hypnotized during the examination, creating high viewer in­terest
in the trial. Hustler magazine owner Larry Flynt was shot during a recess
of his televised trial. Other notorious cases, some violating unenforced laws and
guidelines, added to the pressure. 17
The murder-robbery case of 17-year-old Ronney Zamora, televised during a one­year
"experiment" in the state of Florida, became a national media sensational
because television itself was "on trial" when the novel defense charged it with
inducing insanity through "involuntary subliminal intoxication." The ratings were
reported to have exceeded those of the Johnny Carson Show. When Zamora was
sentenced to life imprisonment, press reports claimed that television was
"acquitted." The defendant, on the other hand, may have been ill served. In an un­successful
attempt to obtain a new trial, distinguished criminal lawyers and a
Dade County Criminal Court Judge testified that Ronney Zamora's defense be­came
secondary to other interests served by the television coverage. 18
The current "experiment" in Iowa courtrooms specifies that a defendant or
witness may seek to have video recording stopped "upon showing that harm would
result." 19 How can a person involved in a trial know, let alone show, such a thing?
Already a Florida District Court of Appeals has overturned a conviction because
the judge allowed the trial to be covered against objection and without "a full
evidentiary hearing on the possible effects of coverage."20 In another Miami case,
the defendant appealed a $1.6 million judgment on grounds that the jury returned
a "newsworthy verdict in hope and expectation that they would receive further
television coverage." 21 Yet another aftermath of the Florida "experiment" is the
first case headed for the U.S. Supreme Court in which the defendants claim that
the presence of television denied them a fair and impartial trial. 22
The current offensive
Soon after the Florida "experiment" was declared a success, television pr
pared for the pig push. Camera crews are not journalists; they are union techr
(continued on page
Dean 's Dicta
On Wednesday, March 12, 1980, the
University of Louisville School of Law
sponsored a debate between Professor
James R. Merritt and Judge Charles M.
Leibson on the related roles of theory and
practice in the education and training of
lawyers. This was not the first - and cer­tainly,
not the last - time this subject has
been discussed by legal educators.
From the time of the establishment ofl
the Inns of Court in rriedieval England,
lawyers have always beert concerned about
the balance between academic and skills
training in the preparation of members of
the Bar. In colonial America, George
Wythe, the first legal academician, taught
law to Thomas Jefferson and other leaders
of our young nation at the College of
William and Mary.
At Harvard Law School, Joseph Story
developed a law curriculum in the 1830's
that attracted a number of studen~ in-terested
in the theoretical aspects of the Dean Harold G. Wren
law. But skills training remained in the law
offices, and most persons were admitted to the Bar after "reading law" .
During the mid-nineteenth century, a number of law schools, including our own,
were established to provide academic training for future attorneys. The lecture
method was typically used to explain and analyze various fields of law. In the late
nineteenth century, Christopher Columbus Langdell introduced his famous "case
method" at Harvard. For many years the case method and the lecture method com­peted
with one another, but in the 1930's and 40's, the case method became domi­nant
in nearly every accredited law school. Throughout this period the emphasis in
legal education was placed almost entirely on the theoretical aspects of the law.
After World War II, the law schools introduced many skills training in both cur­ricular
and extra-curricular programs .
Beginning with moot courts and law reviews, law schools extended their pro­grams
to include training in a variety of practical skills. In our law school, courses
and seminars, client counseling, estate planning, trial advocacy, business planning,
arbitration and many others were introduced.
During the nineteen seventies, Chief Justice Burger, the American Bar Associa­tion,
and many others expressed great concern about the need for practical training
of lawyers. In 1978, our faculty increased the number of semester credit hours for
graduation from eighty-four to ninety to some extent in recognition of the need for
skills training. At the same time, the faculty introduced a required course in basic
skills in the first-year curriculum. In my view, the introduction of these additional
aspects to the law school curriculum has in no way jeopardized the fundamental
theoretical training which every law student must acquire while he is in law school.
Our school has sought to balance the theoretical and practical sides of legal
education. The curriculum committee and the entire law faculty will continue to
study the problem to make certain that we maintain a dynamic program, in keeping
with the latest advances in legal education.
Harold G. Wren
Dean
Circuit Court Judge Charles Llebson, left, and Prof. James Merritt, right, debated
aspects of a legal education on March 12, 1980.
"The mutual confidence on which all else depends can be maintained only by an
open minclbnd a brave reliance on free discussion ."
-Learned Hand
Let us know your point of view.
Letters to the editors should be typed and signed. T1le editors reserve the right to
edit letters for space considerations and for clarity.
4 ' I.·J ,· .. · .·.. ·
3
4 Louisville Law Examiner, April14, 1980
Ne"W" Placetnent Director
Stresses Continuity
by Tom Schulz
"It is extremely important to have con­tinuity
for a placement office to be effec­tive,"
Phyllis Liebson said soon after be­coming
the first "full-time" staff member
of the law school placement office.
A major factor Mrs. Liebson identified
in achieving this continuity is to have the
office run by a paid director: someone who
can devote the time necessary to establish
and maintain an effective service to stu­dents
and alumni.
Mrs. Liebson began filling that role on
March 1, funding for her position being pro­vided
as a part of the Dean's budget for
the law school. The current funds will run
out June 30. After that the plans are un­certain.
The current program, however, is at least
a step in the right direction. Dean Harold
G. Wren had said in his state of the law
school address last semester that "One of
the greatest needs of the law school at the
present time is the necessary funding for an
adequate placement program." Dean Wren
also said in the same address that place­ment
should be "placed in the budget as a
line item as soon as possible."
Though Mrs. Liebson's office hours are
only from 9 a.m. to 2 p.m., Monday through
Thursday, she is available for individual ap­pointments
if a student is unable to stop by
during those hours. Kevin Renfro, a second­year
student, also works in the office under
a work scholarship and is there Monday
through Thursday afternoons and all day
Friday.
Mrs. Liebson's major goal is to establish
an ongoing system, one that would con­tinue
from year to year. This would include
files for student use on prospective em­ployers,
especially on firms and govern­ment
agencies that have used the placement
office in the past. Also included in her
plans are files on individual students, their
placement goals and their achievements.
A placement officer is similar to a "middle
man" or broker, trying to match interested
students with the right firms, and interested
firms with the right students, she explained.
One of her projects in this respect is to
attempt to prepare a list of those employers
with interests in specific areas such as tax,
criminal law, etc. She has contacted the
Louisville Bar Association to get approval
and information for this project. It is a
matter of obtaining lists, she said.
"Ninety per cent of the job is working
with people," Mrs. Liebson said.
One aspect of the job is to inform the
student about the placement office, which
is kind of a public relations job. Adver­tising
the office's services to prospective
employers is an equally important aspect.
The most important service in this respect
is the on-campus interviews which the office
co-ordinates.
Mrs. Liebson has had experience as a vol­unteer
in a vocational office and has devel­oped
a background in vocational counsel­ing.
"I know what tools are necessary in
seeking a job," she said.
This is helpful in another area of the
office's services, student counseling. Ideally
this should begin when the student first
enters law school with an aim towards iden­tifying
goals and defining the student's
own skills.
"Also important is to learn the steps in
getting a job: writing a resume and devel­oping
interviewing skills. Interviewing itself
is good experience," she said.
The office also aids students in finding
clerking jobs while still in school as well as
finding jobs upon graduation.
First-year law school students can guarantee themselves a commission as an Air Force officer and a position as
an Air Force Judge Advocate officer through the Air Force ROTC Graduate Law Program.
The law student enrolled in the Graduate Law Program completes all the requirements for the Air Force ROTC
two-year program while attending the second and third years of law school. The Air Force ROTC program in·
eludes academic classes and attendance at a six-week field training encampment during the summer before the
second year of law school.
The student must be enrolled as a first-year student. Students should contact Capt. Bill Hutchersonn at (502)
588-6576 on the Belknap Campus.
Applications should be made by April 15. Selections are made each spring. Apply early. Applications will be
accepted after April15 as long as individuals can be scheduled to attend field training the summer before their
second year of law school.
Sl1etl sttllle
li!lllf ••••
, ....... f••f•••·e
After college, what will I do?
That's a question a lot of
young people ask themselves
these days.
But a two-year Air Force
ROTC scholarship can help
provide the answers. Succes­sful
completion of the program
gets you an Air Force commis­sion
along with an excellent
starting salary, a challenging
job, promotion opportunities,
and a secure future with a
modern Air Force. If you have
two academic years remaining,
find out today about the two­year
Air Force ROTC
Scholarship Program. It's a
great way to serve your country
and a great way to help pay for
your college education.
Air l~tr£e l~ttTt~
t;ate\vay t• a t;reat \\'ay •f l~lfe
Placement Office Director Phyllis Liebson points to an area of Kentucky that is under­represented
by attorneys.
Mrs. Liebson views the placement office
as an integral part of the law school, a
service to incomeing freshmen as well as to
those looking for a job upon graduation
and also a service for alumni, both those
looking to hire and those looking for a
change in positions themselves.
She also points out the office is in a posi­tion
to promote the school through its grad­uates
and thus enhance the school's reputa­tion.
The reputational values is sometimes
invaluable to the individual searching for
a job.
With the recent hiring of Mrs. Liebson,
the placement office took a step forward.
The office began in 1976 as a part-time ven­ture
under the direction of law student
Dorothy Pitt. Her position was funded by
Judge Marlin Volz who had always headed
an informal placement service at the law
school.
The program continued with Judge Volz's
law clerk devoting about one fourth of his
time as placement officer. Susie and Bob
McBeath served in this position successively.
The Student Bar Association under presi-dent
Matthew Welch was successful in
obtaining two tuition remission scholar­ships
for students to work in the office.
, Each of the scholarships had a 90-hour
work limit. Kevin Renfro is working under'
the second of these scholarships. Gerald
Schray held the previous one.
The SBA has also published the senior
placement bulletin which had 1 10 participa­ting
seniors this year.
Mr. Welch said that Dean Wren had asked
the SBA for money to fund Mrs. Liebson's
position. Mr. Welch then discussed the
matter with Dr. Edward Hammond, Vice­President
of Student Affairs, in charge of
the University Placement Office. Dr. Ham­mond
offered to fund the position but stipu~
lated that the person hired would be under
his direction. Mr. Welch said Dr. Ham­mond
told him that it is "the Administra­tion's
job to find placement."
Dean Wren declined Hammond's offer
'"and instead fundedthe position through-the
law school's budget.
Mrs. Liebson, in discussing the placement
office's future, said, "I hope it continues."
News-In-Brief
Phi Alpha Delta fraternity recently
elected new officers for the 1980-81
year. The officers are: Timothy Scott,
Justice; Gail Kaukas, First Vice-Jus­tice;
Antonette Logar, Second Vice­Justice;
Jerrold Perchik, Treasurer;
Renona Browning, Clerk; Lucy Helm,
Marshall; and Scott Fur kin, Recorder.
The Delta Theta Phi fraternity has
announced its officers for the 1980-
81 year: Sharon Conyer, Dean; Wil­liam
Parks, Vice-Dean; Linda Thomas,
Clerk of the Rolls; Charles Mullins,
Ritual; Patricia Kerlick, Tribune;
Joseph D'Ambrosio, Bailiff; and
Phillip Castagno, Exchequer.
CORRECTION
In the March edition of the Exam­iner,
the evening Vice-President of
the Moot Court Board Sharon Welch
was mistakenly identified as Elenor
Welch. The Examiner regrets the re­porting
error.
Essay Contest Announced
Submission for a third Alan Y. Cole Law
Student Essay Contest on "The Exclu­sionary
Rule: Do We Really Need It?"
must be postmarked by June 30, 1980 and
sent to CJS staff offices.
Only students enrolled in ABA-approved
law schools may compete for the $300 cash
prize. Candidates for advanced law degrees
and ABA employees are excluded. Entries
may consist of a discussion of case law,
litigation techniques, or any legal discourse
which might further advance this field of
law. Papers prepared for the 1979-80
school year are eligible, but published
articles or those which have been accepted
for publication are not.
Each entry must have only one author;
be double or triple spaced and not exceed
50 pages, including footnotes. It must in­clude
the author's name, permanent and
temporary addresses and telephone numbers,
name of law school and year of the student.
The contest is named in honor of Alan
Y. Cole, Washington, D.C., in recognition
of his outstanding contributions to the Sec­tion
as 1976-77 Chairperson and as a long­time
Council member.
Submissions will not be returned. The
winner will be selected by a special three­member
judging panel of Section vol­unteers
and will be announced in July.
Send entries to: Coordinator, Law Student
Essay Contest, ABA Criminal Justice Sec­tion,
1800 M Street, N.W., 2nd Floor
South, Washington, D.C. 20036.
Louisville Law Examiner, Aprill4, 1980 5
Delahanty Sets Priorities For SBA
by Elizabeth Ward
Kevin Delahanty, the newly elected Presi­dent
of the Student Bar Association, feels
the law school is faced with several prob­lems
and has set the priorities for his admin­istration.
As it was under the previous SBA
administration, Mr. Delahanty stresses that
the "first priority right now is a permanent
placement office and a permanent place­ment
director. (Former SBA President)
Matthew Welch has obtained a lobby effort
with the administration and a temporary
placement director, Phyllis Leibson. At this
time, we are discussing with Dean Wren
and Dr. Hammond, who is Vice-President
of Student Affairs for the University of
Louisville, the possibilitr of the University
supplying some funds for a permanent
placement office and director."
At a recent meeting with Dr. Hammond
and Dean Wren, Dr. Hammond suggested
that the University of Louisville might find
some money in federal grants to fund a
permanent placement office. However, this
money would be contingent upon moving
the law school's placement office to the
Life Planning Center on the other side of
campus. Dean Wren disapproved of this
plan, expressing concern that lawyers would
not utilize a placement office that was not
directly connected with the law school, that
is, located in the law school building and
under control of the law school. "Matt and
I suggested that perhaps a compromise
would be in order and that the placement
office could be located within the law school
and controlled majorally by the law school
with the University having some control
over it," said Mr. Delahanty. "We did not
come to any consensus of opinion, with
Dean Wren sticking with his position that
the placement office should be under the
direct control of the University of Louis­ville
Law School. Dr. Hammond maintained
his position that in order to receive funds
from the general University, he would have
to have a placement office in the Life Plan­ning
Services with the overall University
Placement Services. We have a meeting
scheduled in April in which all parties con­cerned
will attend to further our plans for
a compromise.
"Dean Wren for the last four years has
submitted in his budget proposal for the
Law School funds for a permanent place­ment
office," Mr. Delahanty continued.
"However, Frankfort has consistently cut
the overall funding of the law school budget
and Dean Wren has insisted that there
isn't enough money to fund a permanent
placement office after these cuts. He is given
an overall figure, which he allocates accord­ing
to his priorities and thus far one of his
priorities has not been a permanent place­ment
office. I believe that the students need
and deserve a permanent placement office.
I don't care where the funds come from as
long as we have a permanent placement
office in the law school under control physi­cally
at this point by the law school. How­ever,
if in order to get these funds we have
to allow the Dean or Dr. Hammond some
control such as a telephone hook-up with
the Life Planning Services, that's fine with
me, as long as the placement office stays in
our building because a lot of us do not have
the time to go across campus in between
classes and utilize their services." Mr. Dela­hanty
believes that if funds are contingent
upon moving the placement office to the
Life Planning Services, he would not accept
them.
In the near future, the ABA is expected
to promulgate recommendations that a
permanent placement office is an ABA re­quirement
for all accredited law schools.
"The second SBA priority," explained
Mr. Delahanty, "is to change the grievance
procedure so that law students may utilize
this procedure to get rid of frustrations or
to make suggestions on improvement of
this University. The model grievance that
we have on file in the Dean's secretary's
office is not approved; therefore, it is not
the grievance procedure that we must go to.
I have learned through John Garner, Presi­dent
of the Student Government Associa­tion,
that the University of Louisville Law
School could not submit their proposal to
the University of Louisville Grievance Pro­cedure.
Therefore, the grievance procedure
we have upstairs is not in effect and any
grievances we have will have to be submitted
to the University. Our procedure and the
University's are very similar but I'm not
satisfied with either of them so this summer
I and the to-be-formed grievance procedure
committee will work to submit a proposal
and change our grievance procedure. Our
goal is to establish a policy which will per­mit
a student to go through an informal
grievance procedure to the Assistant Dean
with our grievance, let him judge the merit,
and then go on up to the Dean so he can
judge the grievance itself."
"A third priority at this time is more
minority representation in this Law School.
At this point in time, we are not in accord­ance
with the Affirmative Action Program
at this school. We have approximately 500
students in this Law School and there are
only 5 to 6 minority students attending.
This year 2 of those minority students will
be graduating leaving 3 black students in a
total population of 500 law students. This is
grossly out of proportion with the minority
representation we should have according to
the Affirmative Action Program. If we
don't make an effort to admit more black
students, more Puerto Ricans, or more
minority students, we will be under direct
attack of the ABA. We admitted 3 minority
students last year and all 3 flunked out. I
don't believe there is any racial discrimina­tion
against black students in this Law
School. However, I do believe there must
be a greater effort to not only recruit black
students but to form some type of program
so that it will enable them to compete with
white students on the law school level.
These programs will include an awful lot of
work such as tutoring services, teaching
people how to review and how to take
notes in the law school. Other facets of the
program, I cannot come up with now, but
I intend to work on it throughout the sum­mer.
I have talked to black students in this
school and have learned that there is an 80
percent to 85 percent attrition rate in minority
students. This may be due to cultural differ­ences;
however, I believe that it is not. The
University of Kentucky has a tremendous
minority recruitment program and they
have a great percentage of minority stu­dents
at their law school. I can't believe
they can succeed in training black lawyers
for the black community and the University
of Louisville can be so inadequate.
"My fourth priority is the grading sys­tem
at the this University. This is one of the
most hotly contested issues in the law
school. You cannot go throughout a .day
without hearing at least one sophomore or
one freshman griping about the low grades
received at this University. In my first year
we started with 105 students. Out of 105
students, approximately 75 were left at the
beginning of the second year. Still teachers
persist in grading on a A, B, C, D grade
curve. I don't understand how they can do
that when they already flunked out 30 per­cent
of our class. We have proved that
we're the A, B, and C students. We are
here and we are making an effort to learn
law and I don't think we should be arbitrarily
considered D students, especially after we
have gone through the first year. We are
graduate students and we have proved our­selves
in college. We have proved ourselves
on the LSA T scores and I believe we deserve
to be graded not on an automatic curve
system but according to our intelligence.
There are a number of grading systems
available. Professor Abramson suggested
last year, after reviewing the Bar results,
that this school should change its system to
a percentage system. I think this would be
more fair. I think students who received
D's that are 64 percent, 1 point from a C,
are aggrieved by getting this D because it
lowers their grade point no matter if it's a
60 or 64. A grading system utilizing a pro­portion
or percentage would more accurately
reflect our knowledge."
Mr. Delahanty also commented on his
expectations of cooperation from the law
school administration during his tenure as
SBA President. "What I hope is that they
will work with me in an effort to improve
the law school. I believe that we have a pro­fessional
administration dedicated to im­proving
our legal education; however, I be­lieve
that they have not listened to the student
body and the views we hold and are there­fore
holding one-sided viewpoints on most
of the issues.
"I believe that the professors are an ex­cellent
faculty and they probably place
most of their emphasis on training students
for the legal profession. As far as I can tell,
most are at least willing to listen to student
views and a number actually have been try­ing
to improve the school. I point out
Professor Abramson, especially, as holding
views very similar to what we · would need
and what the students desire: a more accurate
grading system, fewer hours for freshmen.
That the faculty and administration of the
school are dedicated to improving the legal
education is shown by their involvement
with continuing legal education program,
seminars with legal counseling and legal
training. Not only are they trying to give us
basis and theory of the law, but they are
also trying to train us for the legal profession
before we actually get out into the real world
and apply our knowledge. That is to be
commended. However, the faculty and the
administration seem to think that in order
to facilitate getting proposals or policies
through that it is easier and faster just to
avoid the students' opinions. They believe
that we are just going to mess up the proc­ess;
that we are going to drag and after
they can adequately protect and Improve
our law school without us. Until the stu­dents
actually have more contact with the
administration and teachers and have input
with the policies of the school, we will not
be able to get this law school to better itself
and compete with the better law schools.
The average student sees the faculty not as
a person with whom he can go to and talk,
but is scared of the professors, basing his
viewpoints on only in-class interaction
where the professor is all-powerful, all­knowing.
(Third-year student) Jim Seiffert
· is trying to implement a new program hav­ing
faculty advisors for a small number of
students. The students are to schedule
meetings with the professors every once ·in
a while so they can discuss problems with
the school, how to go about preparing
for their classes, how to schedule their sub­jects
of designated bar courses. When the
students feel the professors are on their
side and that they are there to help them,
our University will improve.
New SBA officers are: Jude Clark, Evening Vice-President; Teri Hasenour, Treasurer; Mike Luvisi, Secretary; Kevin Delahanty, Presi-/
dent; Ray Haley, Vice-President. (Not pictured is Darrel Coffey, LSD/ ABA Representative.) j
I
I
6 Louisville Law Examiner, April14, 1980
Aprile Addresses Trends
In Criminal Procedure
any young lawyer who has
made it through law school and
passed the bar deserves the best
by Greg Yopp
Recent weeks have not approximated the
basic nine to five routine for Assistant
Deputy Public Advocate J. Vincent Aprile,
II of the Commonwealth of Kentucky's Of­fice
for Public Advocacy. Mr. Aprile, who
is also a University of Louisville School of
Law Lecturer, was in Providence, Rhode
Island on February 25 presenting a three
hour continuing legal education program
and then on March 26, he was in
Washington, D.C. appearing before the
Supreme Court of the United States.
At the invitation of the Public Defender
of Rhode Island, Mr. Aprile presented his
continuing education program to the trial
and appellate public defenders as well as
members of the private defense bar in Pro­vidence.
The major topic of the presenta­tion
was "Hypnosis As A Method of
Reviving A Witness's Memory,:• which
focused on a defense strategy to combat the
proliferation of hypnosis as a law enforce­ment
tool in both the investigation and pro­secution
of crimes.
"This is a crusade that I am very active
·in," said Mr. Aprile. "I'm very frightened
of the misuse of hypnosis that is taking
place in the law enforcement area and the
criminal justice system."
According to Mr. Aprile, from five to
eight years ago people started attending
special seminars lasting from three to four
days where they studied how to be a non­theraputic
hypnotist. "What these people
believe is that memory is like a video tape;
that everything that happens to you, you
are storing like you are taking a picture of
it and it can be retrieved."
Under hypnosis the subject blocks his
conscious thoughts and retrieves sup­pressed
memories from his subconscious.
But, it has been proven clinically that sub­jects
under hypnosis are highly suggestible.
They want to help and as a result may pro­vide
answers they think the hypnotist wants
to hear. They honestly believe that what
they have come up with is actually the
truth.
Mr. Aprile learned much of what he
knows about hypnosis from one of the na­tion's
leading experts on the subject, Dr.
Martin Orne, who is a University of Penn­sylvania
psychiatrist. According to Mr.
Aprile, Dr. Orne believes that only
qualified doctors should employ hypnosis
for susequent court room use rather than
"hypno-investigators" who in essence
create an eyewitness whose new found
testimony will later be used in court.
"In hypnosis for theraputic reasons it is
true that the doctor hypnotises you and
asks you to recall an event, but a therapist
doesn't care if you recall reality or fantasy.
Whatever you believe and are suppressing,
if he can get that out, he can do away with
the side effects of it. But it does not have to
be reality. The hypno-investigators don't
realize that and, as a result, they believe
that anything that can be brought out is
true," said Mr. Aprile. "Under hypnosis
you will manufacture details. And the re­ally
incredible thing is you will become
locked in. The right of confrontation and
the right of cross examination under the
Constitution goes down the drain."
To combat the use of such hypnosis, Mr.
Aprile advocates the use of a simple
discovery motion whenever there is going
to be an eyewitness testimony in a case.
"They are using it. My big fear is we don't
know when they are using it. "
The remainder of Mr. Aprile's presenta­tion
was devoted to a discussion of the use
of experts in reading comprehension to
challenge the validity of a Miranda waiver
and the defense use of a "sanity" defense.
The challenge of the Miranda warning is
made on the basis of readability. The idea
is to bring in an educational expert to
VIncent Aprile
testify as to the level of educational reading
and listening oral comprehension ability
necessary to understand waiver. "Then see
what kind your client really has and show
that he could not have made a knowing, in­telligent,
and voluntary waiver because he
couldn't comprehend the words," said Mr. ·
Aprile.
On March 26, Mr. Aprile presented an
oral argument before the Supreme Court of .
the United States on behalf of the peti­tioner
in David Rawlings vs. Com­monwealth
of Kentucky. "It's a very
crucial case in the history of the Fourth
Amendment and I hope it's not one in
which I turn out to be a grave digger as op­posed
to a resurectionist," said Mr. Aprile.
Discussing the appearance, which is his
third before the Court, Mr. Aprile said,
"I was happy with the argument in the
sense that it was a very spontaneous thing.
I talked about five minutes and after that it
was all questions. They put me through the
paces, there is no doubt about that. But
that was much better than going out there
and putting on a show. They got my show
when they read my brief."
Recounting his law school days at the
University of Louisville where he was a
member of the National Moot Court team,
and relating it to what he knows now, Mr.
Aprile said, "if you really get involved in
the moot court program it can be a big help
to you in appellate argument later on. It is
a real model of what appellate argument is
all about."
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SBA President Kevin Delahanty and Matthew Welch present a composite picture of the
third-year graduating class to Dean Harold G. Wren.
WOODY'STA
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Pitchers of Draft Beer
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Louisville Law Examiner, April14, 1980 7
(continued from page 3)
cians hauling and handl ing costly equipment whose every move and minute must
be carefully budgeted. ABC's Steve Tello, who had run the broadcast pool for the
grol}ndbreaking Zamora affair, was assigned to the biggest show yet in the line of
legal spectaculars, the multiple college-girl sex murder trial of Theodore Bundy.
With its lurid and intimate details and type casting fitting the dramatic media
pattern, Bundy became the first nationally televised courtroom-originated real­life
horror show of the new era. It cost ABC an estimated $2 million to field the
crew and carry the event, a good investment by program cost and ratings stan­dards.
The judge, pronouncing his third death sentence, called the coverage,
"the most accurate reporting of a trial. " 23 Bundy denounced the coverage and
claimed that he had been victimized by media " sharks." Broadcasting magazine
declared "VERDICT IS IN FAVOR OF TV IN BUNDY TRIAL." 24
Emboldened by their successes and impatient with legal inhibitions, the media
launched a two-pronged offensive. Typical of one approach was a "First Amend­ment
Survival Seminar" sponsored by the National Association of Broadcasters
and other organizations in Washington on March 10, 1979. Jack Landau, director
of the Reporters' Committee tor Freedom of the Press, told the meeting that courts
think they are "above the laws of the country." The press should tight back "on
our own turf," he said, referring to media campaigns and coverage. A Supreme
Court correspondent urged his colleagues: "Don't try to join the system - beat
it." He thought that "Time has surely come to use tricks" such as hidden record­ers
and parabolic microphones to pick up court proceedings. 25 A few months
later the industry moved to set up a " First Amendment defense" insurance pro­gram
to cover legal fees in cases involving access to information. 26
The other prong of the offensive is more circumspect. An example was the
careful staging of a demonstration of "cameras in the courtroom" at the August
1979 Dallas meeting of the American Bar Association. Invited by the ABA, fea­turing
a debate and a mock TV trial, the demonstration was designed to show, in
the words of National Association of Broadcasters President Vincent T. Wasilev­sky,
" how effectively the electronic media can operate without any interference
with the dignity and decorum of the proceedings." 27
Steve Tello of Zamora and Bundy fame was again pressed into service. Learning
a lesson from Atlanta, camera crews donned pin stripes and were reported "almost
indistinguishable from conservatively dressed ABA members." Cables were
tucked down air conditioning ducts. The formal briefs used in the mock appellate
proceedings were included in a booklet entitled "Cameras in the Courtroom: A
Presidential Showcase Program" and distributed at the convention. Broadcasting
magazine headlined the affair "TV in its Sunday Best for ABA demonstration,"
and concluded: "No muss, no fuss: It was an example of what television tech­nology
and professionalism can do in 1979." 28
Conflicting missions
But dignity, decorum, technology, and professionalism are not the issues.
Televi sion in its "Sunday best" is an institution with its own goals and mission.
Collaboration with media, when not strictly codified, is a cottage industry in trading
confidences. Those who have played the game the longest describe its rules in a
study of congressional committee hearings and the media: (1) accept reporters'
detmitions of what constitutes news, (2) accommodate inquiries, (3) ask tor ano­nvmity
tor staff members (4 tl) to get some cred t for the boss. 29
Te1ev1sing Con res u der Congress1ona1 rather than television industry con­trol
predictably detracts from its entertainment values. The camera is usually
trained on the Speaker's platform and on the tables where f loor leaders operate.
It rarely it ever picks up a dozing member, empty seats, reaction shots and other
potentially embarrassing sights. The networks that campaigned tor coverage
under their control now found only a few snippets of the video feed suitable tor
their purposes. In the first SIX months of gavel-to-gavel coverage, ABC and NBC
used about 12 and CBS 19 pieces.
The potent ial of audience appeal in selected trials is much greater. Already
sex, gore, madness, and bizarre scenarios dominated the real-lite television court­room
scene, using real trials to confirm the fantasy image of justice on television.
With the prospect of TV rather than the courts calling the shots, it may be instruc­tive
to consider the record of the press in using its rights to defend the rights
of others, especially those with no money, clout, or popular appeal.
A study of metropolitan newspapers' coverage of First Amendment cases be.­fore
the Supreme Court shows considerably greater concern with press rights
than with the other basic freedoms. The study suggests that press advocacy of
freedom is largely self-serving and could not be expected to help uphold rights
inimical or irrelevant to its own. 30
The press also has a poor record of using information made available by the
courts. Of the most significant verdicts reached by the California Supreme Court
and released to the press, a sample of 10 state dailies reported one-fifth. Only
conflict on the court helped draw press attention to a case.31 The first time the
media ever paid sustained and compelling attention to the U.S. Supreme Court,
even going to the extent of serializing the story, was the appearance of the per­sonalized
account of a thousand leaks, The Brethren by Bob Woodward and Scott
Armstrong. 32
In the most sensitive area of citizens' rights, the area of crime reporting, the
media work closely with the police and generally follow what one survey of re­search
calls "the police version of crime."33 Most studies agree that crime news
generally gives a misleading and prejudicial account of the frequency and nature
of crime in a community34 and that such coverage provides the media "with a
vehicle for communication to readers of the necessity for strong social controls."35
Broadcast coverage is, if anything, the most slanted toward the police view of
due process, especially since the minicam gave crews the ability to follow police
Ups to the field and to concentrate on the violent and the spectacular. A 14-week
survey of community coverage found the programming "often arbitrary, super­ficial,
or both," a casualty of "the so-called 'realities' of the TV Industry ... " 311
AT THE POINT OF "0 RETURN .
Television presents a coherent world of Images and messages serving Its own
institutional Jnterests. The question is whether the judiciary should be enlisted
to add further credibility to media mythology. Plugging courtrooms into the tele­vision
system can make them appendages of that system. Once televised trials
attract a large national following, the process will be irresistible, cumulative,
and probably irreversible. ·
The scenario unfolding now is what Chief Justice Warren warned against when
he wrote with the majority in Est~s .v. Texas that "the tel~vising of criminal trials
is inherently a denial of due process." Believing that the case at hand was only
"a vivid illustration of the inherent prejudice of televised criminal trials," Warren
wished to "make a definitive appraisal of television in the courtroom."
In doing so, he predicted, with uncanny foresight, the entertainment pressures
upon the selection and treatment of trials; the impact of notoriety upon partici­pants,
including jurors returning to their communities; the problem of impartially
re-trying a case after wide national exposure; and the likelihood that defendants
who have attracted public interest and find their " trial turned into a vehicle for
television . . . are the very persons who encounter the greatest difficulty in se­curing
an impartial trial even without the presence of television." Chief Justice
Warren concluded that " the television industry, like other institutions, has a
proper area of activities and limitations beyond which it cannot go with its cameras.
That area does not extend into an American courtroom . . . Where the lives, li­berty,
and property of people are in jeopardy, television representatives have only
the rights of the general public, namely to be present, to observe the proceed­ings,
and thereafter, it they choose, to report them."37
There is no doubt that, whatever its general social functions, television has
enriched the horizons of many who have been out of the cultural mainstream
ever since the coming of print-oriented culture. Television can also spread occa­sional
superb insight and enlightenment. England's BBC has broadcast the trials
of France's Marshal Petain, of the Irish patriot Roger Casement, and of the Chi­cago
Seven before Judge Hoffman. U.S. networks aired "A Case of Rape," "The
Rosenberg Case," "The Execution of Private Slovik," and the "On Trial" series of
historical cases. These were all dramatic enactments, with occasional documen­tary
footage, trying to go behind the scenes and to illuminate the invisible but
all-important principles of justice in a calmer historical perspective. Instant tele­casting
of live trials - television at its spontaneous best - is likely to achieve
the opposite.
The political opportunities inherent in the shifting balance of powers will become
more and more compelling. Now about 10 percent of the electorate can identify
any judicial candidate during an election. A television trial can easily multiply
that tor the chosen candidate. (Will others ask for equal television trial time?) As
a system of mutual accommodations and payoffs develops, controls and inhibi­tions
are likely to fall by the wayside.
Neither history nor existing research support the contention that the addition
of instant video spectacle to current court coverage would enhance fairness,
freedom, public understanding, or needed court reform. The record reflects a his­tory
of institutional cross-purposes that the addition of scenes of real-life court­room
drama selected and edited for general television audiences is more likely to
magnify than to rectify.
Only an immediate moratorium on televising trials can provide time and the
opportunity for responsible action. In the face of demonstrated conflicts and
incalculable risks, the burden of proof must shift from the potential victims to
the proponents of trials by television. It is with some trepidation that I even sug­gest
research lest it become an excuse for pressing forward " until all the data
are in."
The research cannot take short-term overt manifestations and opinions at face
value. Unless it investigates the enduring inst itutional consequences of sustained
exposure to televised trials, it is worse than no research at all; it becomes a window­dressing
for foregone conclusions.
A two-stage design may provide the framework for meaningful investigation.
Stage 1 would be the reliable and objective analysis of a representative sample
of televised trials and segments of trial s. Stage 2 would be a systematic assess­ment
of the relevant conceptual and policy consequences of exposure to these
telecasts.
To continue toward a national system of television t rials risks passing the point
of no return. Research beyond that point is a waste and an illusion. However,
coupled with a moratorium, research on a appropriate scale would be a respon­sible
and pioneering way to build a basis for future decisions. The research would
systemat ically test relevant conceptions and behaviors of participants and mem­bers
of their communities and, most importantly, it would assess conceptions
of the judicial process that television trials cultivate in the minds of the viewers.
Without such research, and unless the results warrant further action, the interests
of justice and the rights of citizens are best served by a flat "No" to trials by
television.
10. Francis Haskell, "Yesterday's Today Show," The New York Review of Books, October 12, 1978, p.
55.
11 . The New York Times, June 25, 1979.
12. Cited in Mass Media and the Supreme Court, edited by Kenneth S. Devol. New York: Hastings
House, 1971, p. 318.
13. Stephen Zito, "Hollywood Versus the Press," American Film, May 1978.
14. Leona Floren, "The Camera Comes to Court," Freedom of Information Center Report No. 396,
University of Missouri, October 1978.
15. William E. Francois, Mass Media Law and Regulation, Second Edition. Columbus, Ohio: Grid, Inc.,
1978, p. 272.
16. Devol, p. 313-318.
17. For a detailed account see Frank W. White, "Cameras in the Courtroom: A U.S. Survey,"
Journalism Monographs No. 60, April1979.
18. From a personal communication by Joel Hirschhorn, one of the attorneys testifying in the case.
19. The United States Law Week 12-4·79, 48 LW 2383.
20. Freedom of Information Digest, University of Missouri, September-October 1979, p. 1.
21. Broadcasting, October 17, 1977, p. 25.
22. Chandler and Granger v. State 366 So.2d 64 (FLA. 3rd DCA 1979) Appeal dismissed, cart. denied,
public question moot, So. 2d (FLA. Sept. 27, 1979) Stay of mandate granted Supreme Court S.Ct.
(Jan. 11, 1980)(Powell, J. in chambers).
23. Variety, October31, p. 73.
24. August 6, 1979, p. 29.
25. Broadcasting, March 26, 1979, p. 104.
26. Broadcasting, OctoberS, 1979.
27. Broadcasting, July 30, 1979, p. 69.
28. Broadcasting, August 20, 1979.
29. Susan H. Miller "Congressional Committee Hearings and the Media: Rules of the Game,"
Journalism Quarterly, Winter 1978, p. 659. ·
30. F. Dennis Hale, "A Comparison of Co¥erage of Speech and Press Verdicts of Supreme Court,"
Journalism Quarterly, Spring 1979, p. 43.
31 . F. Dennis -Hale, "Press Releases vs. Newspaper Coverage of California Supreme Court Decision,"
Journalism Quarterly, Winter 1978.
32. New :York: Simon & Schuster, 1979.
33. Sanford Sherizen, "Social Creation of Crime News; All the News Fitted to Print." In Deviance and
Mass Media edited by Charles Winick, Sage Publications, 1978, p. 222.
~- See, for example, E. Terrence Jones, "The Press as Metropolitan Monitor," Public Opinion
Quarterly, 40;1976, pp. 239-244.
35. Matthew Lippman, "The Law of Contempt: Fair Jury Trials and Free Press in Australia," Australian '
SCAN; Journal of Human Communication, No.5, December 1978-May 1979. ·
36. From a survey by the Lab for Public Affairs Television at the New School's Center for New York
City Affairs, reported in Broadcasting, February 20, 1978, p. 60.
37. Devol, pp. 317, 320,321 .
I I
I
8 Louisville Law Examiner, Aprill4, 1980
Journal
of
Family Law
Articles
Appearing in Vol. 18, Number 2
• The Proper Role of Psychology in Child Custody Disputes
. . . . . . . . . . . . . . . . . . . . . . . . . by Litwack, Gerber and Fenster
• The Supreme Court's View of Marriage and the Family: Tradi­tion
or Transition? . . . . . . . . . . . . . . . . . . . . . . . . by Peter Riga
• Legal Aspects of Artificial Insemination .. by Jeffrey Shaman
Book Reviews • Unmarried Couples and the Law . .. .. .. .. by G. Douthwaite
• Having Babies .. . ... ... ... .. ...... .. by Charles Kindegran
Notes • Home Instruction: An Alternative to Institutional Education
Issues Presented by Analysis of a Representative Case:
• Consent to Adoption as • Appointed Counsel in Paternity
Abandonment Action
• Parental Consent for Minor's • Damages for Mother's Anxiety
Abortion About Injury to Fetus
• Choice of Surname of • Parental Consent to Search of
Child Child's Property
• Notice to Father in • Infant's Action for Wrongful
Guardianship Action Life
Summaries of Over 50 Recent Cases in the area of Family Law
Mail Orders to:
Managina Editor
Journal of Family Law
University of Louisville
School of Law
Louisville, KY 40208
D Vol. 18, No.2 ($4.00)
D Vol. 18 ($15.00)
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Address-----------------------------
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A Quarterly Publication of the University of Louisville School of Law
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Law Examiner
Volume 5
Number6
April 14, 1980
Prof. Irving
Younger lectures
on the law
of evidence
... page 1
The School
of Law
has a new
placement
office director
•.. page4
In the photo
at right,
Prof. Abramson
takes advantage
of the Spring
weather,
holding his
Advanced Criminal
Procedure class
in the law
school's courtyard.

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